Petition for Writ of Certiorari — Anthony Smith, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2020

ANTHONY SMITH,

Petitioner,

-v.UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Andrew Levchuk

Counsellor at Law

7 North Pleasant Street

Suite 2-D

PO Box 810

Amherst, MA 01004

Tel: 413-461-4530

Attorney for Petitioner

QUESTIONS PRESENTED

Title 18, United States Code, Section 922(g)(1), “[i]t shall be unlawful” for certain

individuals to possess firearms that have traveled in interstate commerce. The provision lists nine

categories of persons subject to the prohibition, including those previously convicted of a crime

punishable by a term exceeding one year. A separate provision in 18 U.S.C. § 924(a)(2) adds that

anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10

years. In Rehaif v. United States, 139 S. Ct. 2191 (2019), this Court held that in a prosecution

under § 922(g) and § 924(a)(2), the government must prove both that the defendant knew he

possessed a firearm and that he knew he belonged to the relevant category of persons barred

from possessing a firearm. The issues relating to Sections 922 and 924 are:

1.

Whether the district court committed plain error in failing to instruct the jury that the

evidence must establish both that appellant Anthony Smith knew he possessed a firearm and

ammunition and that he knew he belonged to the relevant category of persons barred from

possessing a firearm and ammunition.

2.

Whether the convictions must be reversed and the indictment dismissed because the

indictment failed to charge a critical element of an offense under Section 922(g)(1), i.e., that

Smith subjectively knew he was prohibited from possessing a firearm.

3.

Whether the combination of the above errors affected petitioner’s substantial rights and

the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

In conflict with the decision below, the Fourth Circuit in United States v. Medley, No. 184789 (4th Cir. August 21, 2020), held that the combination of the above errors required a

reversal for plain error.

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

There are no related cases pending in any court.

ii

TABLE OF CONTENTS

OPINION BELOW ..................................................................................................1

JURISDICTION ......................................................................................................1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ..............1

STATEMENT .........................................................................................................2

REASONS FOR GRANTING THE PETITION .....................................................5

CONCLUSION ......................................................................................................11

INDEX TO APPENDICES....................................................................................12

APPENDIX A ...........................................................................................12

iii

TABLE OF AUTHORITIES

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........................................................8

Dunn v. United States, 442 U.S. 100, 107 (1979) ...................................................7

Johnson v. United States, 318 U.S. 189 (1943) ......................................................7

Jones v. United States, 526 U.S. 227 (1999) ..........................................................8

Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) ................................ 6-7

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

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) .......................................8

Russell v. United States, 369 U.S. 749 (1962) ...................................................8

Silber v. United States, 370 U.S. 717 (1962) ...........................................................8

Sullivan v. Louisiana, 508 U.S. 275 (1993) .............................................................7

United States v. Balde, 943 F.3d 73 (2d Cir. 2019) .................................................5

United States v. Cotton, 535 U.S. 625 (2002) .........................................................8

United States v. Gary, 954 F.3d 194,

reh’g en banc denied, 963 F.3d 420 (4th Cir. 2020) ......................................7, 11

United States v. Medley, No. 18-4789 (4th Cir. August 21, 2020) ................ passim

United States v. Miller, 954 F.3d 551 (2d Cir. 2020) ..............................................4

United States v. Olano, 507 U.S. 725 (1993) ..........................................................6

United States v. Young, 470 U.S. 1 (1985) ..............................................................7

STATUTES

18 U.S.C. § 922(g) ........................................................................................ passim

18 U.S.C. § 924(a) ........................................................................................ passim

28 U.S.C. § 1254(1) ................................................................................................1

iv

OPINION BELOW

The summary order of the United States Court of Appeals for the Second Circuit, entered

May 26, 2020, 2020 WL 2703680, is not reported and is found at Appendix A.

JURISDICTION

The court of appeals issued its opinion and judgment on May 26, 2020. This petition is

filed within 90 days of the judgment. This Court’s jurisdiction is invoked under 28 U.S.C. §

1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Title 18, United States Code, Section 922 provides in relevant part:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment

for a term exceeding one year;

(2) who is a fugitive from justice;

(3) 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));

(4) who has been adjudicated as a mental defective or who has been committed to

a mental institution;

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the

United States under a nonimmigrant visa (as that term is defined in section

101(a)(26) of the Immigration and Nationality Act (8 U.S.C.

1101(a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable

conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at

which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate

partner of such person or child of such intimate partner or person, or engaging in

other conduct that would place an intimate partner in reasonable fear of bodily

injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the

physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of

physical force against such intimate partner or child that would reasonably be

expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic

violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to receive any firearm or ammunition

which has been shipped or transported in interstate or foreign commerce.

Title 18, United States Code, Section 924(a) provides in relevant part:

(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of

section 922 shall be fined as provided in this title, imprisoned not more than 10

years, or both.

STATEMENT

1. Petitioner Anthony Smith was charged by way of criminal complaint on April 20,

2016. Dkt. No. 1. 1 On May 19, 2016, a grand jury sitting in the District of Vermont returned an

indictment charging appellant Anthony Smith with possessing a firearm in commerce after

having been convicted of a crime punishable by more than one year in prison, in violation of 18

U.S.C. § 922(g)(1). Dkt. No. 10. A superseding indictment was returned on January 12, 2017,

adding an additional count charging possession of ammunition by a previously convicted felon,

1 “Dkt. No. __” refers to the docket entry numbers in the United States District Court for the

District of Vermont in United States v. Anthony Smith, 2:16-cr-00071-cr-1.

2

also in violation of 18 U.S.C. § 922(g)(1). Dkt. No. 42. According to the allegations in the

charging documents, Smith possessed a firearm and ammunition located in a vehicle in which he

was traveling as a passenger. The firearm and ammunition were discovered during a search by

the Vermont State Police. Smith had previously been convicted of a crime punishable by a term

of imprisonment exceeding one year. Dkt. No. 1-1 at 2-3.

Following a jury trial in United States District Court for the District of Vermont, Smith

was convicted on both counts of the superseding indictment. Dkt. No. 150. He was sentenced to

a total of 63 months’ imprisonment. Dkt, No. 195. The United States Court of Appeals for the

Second Circuit affirmed his conviction. App. A1-A7.

2. At trial, Smith stipulated that “[i]n July 2006, in the United States District Court for

the Northern District of New York, the defendant, Anthony Smith, was convicted of a crime

punishable by a term of imprisonment exceeding one year.” Dkt. No. 166 at 108-09. There was

no stipulation, nor was there any proof at trial, the Smith was subjectively aware that he fell

within a class of persons prohibited from possessing firearms in commerce. App. 2.

The district court charged the jury as follows as to the elements of both counts:

The government must prove each of the following elements beyond a reasonable

doubt to sustain its burden as to Count 1:

First, that the defendant was convicted, in any court, of a crime punishable by

imprisonment for a term exceeding one year, as charged;

Second, that the defendant knowingly possessed ammunition; and

Third, that the possession charged was in or affecting interstate or foreign

commerce.

Dkt. No. 166 at 231. The court gave essentially the same charge as to the firearm charge in

Count Two. Id. at 236. In neither case did the court instruct the jury that the government was

3

required to prove beyond a reasonable doubt that Smith was aware of his prohibited status. The

defense did not object to the charge, and the jury returned verdicts of guilty on both counts.

3. The court of appeals affirmed. The court of appeals acknowledged this Court’s

holding in Rehaif that, “in a prosecution under 18 U.S.C. § 922(g) . . . , the government must

prove both that the defendant knew he possessed a firearm and that he knew he belonged to the

relevant category of persons barred from possessing a firearm.” App. 2, quoting 139 S. Ct. at

2200. The court of appeals also agreed with Smith that “[n]either the indictment charging Smith

nor the jury instructions at his trial articulated the knowledge requirement identified by the Court

in Rehaif.” App. 2. Because Smith did not object at trial, the court of appeals reviewed his

claim “for plain error, considering whether (1) there is an error; (2) the error is clear or obvious

. . . ; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.” App. 2-3, quoting United

States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020) (quotation marks omitted).

The court of appeals held that Smith’s claim of instructional error was foreclosed by the

court’s decision in Miller, where the court “rejected the argument that the district court plainly

erred by failing to instruct that § 922(g) requires the government to prove knowledge of felon

status.” App. 3, citing 954 F.3d at 557–60. Miller held that the defendant’s challenge failed at

the fourth prong of plain-error analysis, examining whether the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. at 559-60. The court in

Miller “look[ed] beyond the trial record at the defendant’s presentence investigation report

(“PSR”).” Relying on the PSR, the court reasoned that, because Miller had been sentenced to

and served more than one year in prison for a prior felony conviction, he necessarily knew of his

felon status and “would have stipulated to knowledge of his felon status to prevent the jury from

4

hearing evidence of his actual sentence.” 954 F.3d at 560. The court of appeals continued: “The

same is true here: Smith has multiple prior felony convictions, was sentenced to over one year in

prison for two of those crimes, and served nearly seven years in prison for one prior conviction.

Smith, like Miller, stipulated to the existence of a prior felony in order to prevent its details from

being placed before the jury.” App. 3. While the stipulation did not “specifically address[] the

defendant’s knowledge of his felon status,” the court of appeals had “no doubt” that, had the

Rehaif issue been foreseen by the district court, Smith would have stipulated to knowledge of his

felon status. The court of appeals therefore held that the erroneous instruction did not warrant

vacatur of Smith’s conviction. App. 4.

The court of appeals also rejected Smith’s claim that the indictment was jurisdictionally

defective because it did not allege an element of the offense, i.e., Smith’s knowledge of his

prohibited status. The court of appeals noted that it had previously rejected a similar claim in

United States v. Balde, 943 F.3d 73 (2d Cir. 2019). Balde held that an indictment that tracks the

language of the statute is sufficient to confer jurisdiction. Id. at 89–90. The indictment here

“mirrors the words of the relevant statute” and therefore, according to the court of appeals, the

indictment’s failure to allege that Smith knew that he was a felon was not a jurisdictional defect.

App. 3.

REASONS FOR GRANTING THE PETITION

The court of appeals’ decision below is in conflict with the Fourth Circuit’s decision in

United States v. Medley, No. 18-4789 (4th Cir. August 21, 2020). In Medley, the Fourth Circuit

vacated the conviction of a defendant who—like petitioner Smith—went to trial and was

convicted of a Section 922(g)(1) charge before the Court’s decision in Rehaif. The Fourth

Circuit held the defendant’s trial was marred by two separate plain errors: (1) the indictment did

5

not allege he was aware of his felon status, and (2) the district court did not instruct the jury on,

and the government did not present sufficient evidence of, the knowledge-of-status element. The

opinion stated: “Applying plain-error review, we conclude that the asserted Rehaif errors

violated Medley’s substantial rights. Sustaining Medley’s conviction under the present

circumstances would deprive Medley of several constitutional protections, prohibit him from

ever mounting a defense to the knowledge-of-status element, require inappropriate appellate

factfinding, and do serious harm to the judicial process.” Id., slip op. 3. The court below, in

contrast, relied on Miller and found that precisely the same errors did not affect petitioner

Smith’s substantial rights, nor seriously affected the fairness, integrity or public reputation of

judicial proceedings. This Court should grant certiorari to resolve this conflict.

As noted above, this Court held in Rehaif that to convict a defendant of violating §

922(g) and § 924(a)(2), the government must show not only that the defendant knew he

possessed a firearm, but “also that he knew he had the relevant status when he possessed it.” 139

S.Ct. at 2194. The Court stated: “We conclude that in a prosecution under 18 U.S.C. § 922(g)

and § 924(a)(2), the Government must prove both that the defendant knew he possessed a

firearm and that he knew he belonged to the relevant category of persons barred from possessing

a firearm.” 139 S.Ct. at 2200. Justice Alito’s dissent acknowledged that “[t]hose [defendants] for

whom direct review has not ended will likely be entitled” to reversal of their convictions. Id. at

*17.

The jury instructions at Smith’s trial were not in accord with Rehaif. Dkt. No. 166 at

231-37. Although the defense did not object (id. at 242), the failure to instruct the jury on an

element of the offense amounts to plain error under United States v. Olano, 507 U.S. 725 (1993),

and its progeny for the reasons stated in Medley. See also Molina-Martinez v. United States, 136

6

S. Ct. 1338, 1343 (2016). The court of appeals in this case arrogated to itself the determination

of whether Smith knew that he belonged to the relevant category of persons barred from

possessing a firearm. In doing so, it credited information contained in the presentence report

prepared after the jury rendered its verdict. Petitioner submits that a plain error analysis may not

uphold a jury verdict based on “evidence” that was never presented to the jury. In these

circumstances, “[a] reviewing court can only engage in pure speculation—its view of what a

reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the

defendant guilty.’” Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). See also Dunn v. United

States, 442 U.S. 100, 107 (1979) (“[A]ppellate courts are not free to revise the basis on which a

defendant is convicted simply because the same result would likely obtain on retrial.”). Although

a court must “relive the whole trial imaginatively” on plain error review, United States v. Young,

470 U.S. 1, 16 (1985) (quoting Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter,

J., concurring)), a court is not free to imagine a different trial altogether, which is what the court

of appeals did here.

As stated above, the court of appeals’ decision in this case squarely conflicts with the

Medley, as well as with the Fourth Circuit’s prior decision in United States v. Gary, 954 F.3d

194, reh’g en banc denied, 963 F.3d 420 (4th Cir. 2020). In Medley, the Fourth Circuit vacated

the conviction of a defendant who went to trial and was convicted of a Section 922(g)(1) charge

before the Court’s decision in Rehaif. The Fourth Circuit held the defendant’s trial was marred

by the same two plain errors that occurred in Smith’s case: (1) the indictment did not allege he

was aware of his felon status (slip op. 9-19), and (2) the district court did not instruct the jury on,

and the government did not present sufficient evidence of, the knowledge-of-status element (slip

7

op. 19-29). The Fourth Circuit concluded that the cumulative effect of these errors was

prejudicial. Slip op. 27-28.

The decision below conflicts with Medley in finding that it was unnecessary to include

Rehaif’s knowledge element in the superseding indictment. App. 3. As noted in Medley, this

Court has held that an indictment that omits an essential element of an offense is deficient. See

Apprendi v. New Jersey, 530 U.S. 466, 500-518 (2000) (Thomas, J., concurring) (discussing

cases and treatises since the 1840’s, which repeatedly emphasize the importance of including

every element in an indictment); Jones v. United States, 526 U.S. 227, 243 n.6 (1999) (holding

that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial

guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the

maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt”). 2 And the Court’s prior cases suggest that a constitutionally

deficient indictment is prejudicial under Olano’s third prong. See Silber v. United States, 370

U.S. 717, 717 (1962) (reversing judgment for plain error as a result of a defective indictment);

see also Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018) (citing Silber

approvingly); Russell v. United States, 369 U.S. 749, 770 (1962) (“To allow the prosecutor,

or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time

2 In United States v. Cotton, 535 U.S. 625 (2002), this Court overruled its prior holding that

indictment defects are jurisdictional. Id. at 629–31 (overruling Ex parte Bain, 121 U.S. 1 (1887)).

The Court declined to address whether indictment defects satisfied the third prong of the plainerror inquiry. Id. at 632–33 (“[W]e need not resolve whether respondents satisfy this element of

the plain-error inquiry, because even assuming respondents’ substantial rights were affected, the

error did not seriously affect the fairness, integrity, or public reputation of judicial

proceedings.”). Because the trial evidence supporting the element omitted from the indictment

was “overwhelming” and “essentially uncontroverted,” the Court declined to exercise its

discretion to notice the error. Id. at 632–34.

8

they returned the indictment would deprive the defendant of a basic protection which the

guaranty of the intervention of a grand jury was designed to secure.”)

The Fourth Circuit held that an indictment’s omission of an essential element, the Fourth

Circuit wrote, violates a defendant’s substantial rights “if the protections provided by an

indictment were . . . compromised.” Slip op. 16-17 (citation omitted). Specifically, an

indictment causes prejudice if it does not protect the right “to be notified of the charges against

[a defendant] by a description of each element of the offense.” Id. at 17 (citation omitted).

Because neither the indictment’s “charging language” nor its “factual allegations” put Medley on

notice of the need to defend against the knowledge-of-status element, the third prong plain error

analysis was satisfied. Id. at 19.

The Fourth Circuit also held Medley’s substantial rights were violated “by the district

court’s failure to instruct the jury that it had to find Medley knew his prohibited status, and the

Government’s failure to present sufficient evidence on that point at trial.” Id. at 27. This error

was “independently” sufficient to satisfy the third plain-error prong. The Court identified “three

scenarios” in which failure to instruct the jury on an element is not prejudicial: “when 1) a jury

necessarily made the findings notwithstanding the omission, 2) the omitted element was

uncontested and supported by overwhelming evidence, or 3) the element was genuinely

contested, but there is no evidence upon which a jury could have reached a contrary finding.” Id.

at. 23.

The only scenario potentially relevant was the second. Based on the law at the time of

trial, neither party had any incentive to contest the knowledge-of-status element. Therefore,

speculating about how Medley would have defended against that element “would represent [an]

untoward leap of logic.” Because it is “inappropriate” to hypothesize about such a

9

“counterfactual scenario,” the Fourth Circuit held—without looking to the trial record—that

Medley’s substantial rights were violated. While it may be appropriate to look at the trial record

in certain circumstances, where “we do not have a contested element ‘because the element

emerged as a consequence of a change in the law after trial,’ . . . it is inappropriate to speculate

whether a defendant could have challenged the element that was not then at issue.” Id. at 24.

The court then held, in the alternative, that even if it considered the trial record, the third

plain-error prong was satisfied because the government did not present “overwhelming”

evidence of Medley’s knowledge of status. In particular, Medley’s trial stipulation to felon

status and his flight upon seeing police did not establish knowledge at the time of the offense.

The court did not consider it appropriate to look to evidence outside the trial record, such as the

presentence report, which showed Medley had previously served sixteen years in prison for

murder. Id. at 25-27.

Finally, the court exercised its discretion at the fourth plain-error step because, “in the

aggregate,” the indictment and instructional/sufficiency errors affected the fairness, integrity, and

public reputation of judicial proceedings. Depriving a defendant of the protection of a grand jury

is “intolerably unfair,” the court wrote, and the petit jury right “ranks among the most essential.”

Affirming Medley’s conviction would require “cast[ing] a defendant’s constitutional rights aside

and trampl[ing] over the grand jury and petit jury’s functions.” Id. at 32. As the court put it,

“[i]f the right to trial by jury does not guarantee relief in the case at bar, it is hard to see what

exactly it does guarantee.” Id. at 33 n.8. For all of the reasons stated by the Fourth Circuit, the

Second Circuit reached the wrong result in this case. The issue is critically important to

numerous defendants whose convictions were on direct appellate review when Rehaif was

decided, and this Court should resolve this manifest conflict.

10

Petitioner notes that the Fourth Circuit recently denied rehearing in United States v. Gary,

954 F.3d 194 (4th Cir. 2020), a case in which it is likely that the Solicitor General will seek this

Court’s review. The panel held that where the Section 922(g)(1) plea colloquy did not properly

explain the elements per Rehaif, and “[b]ecause the court accepted Gary’s plea without giving

him notice of an element of the offense, the court’s error is structural.” 954 F.3d at 198.

Although Gary was decided in the context of a plea, it highlights the essential nature of

informing a criminal defendant of each and every element of an offense prior to his conviction,

whether by plea or by jury trial. The panel below gave no weight to the indictment’s failure to

include, or the district court’s failure to charge, a critical element of the offense.

CONCLUSION

The Court should grant the petition for a writ of certiorari and reverse the decision of the

court of appeals.

Dated: August 24, 2020

Respectfully submitted,

/s/ Andrew Levchuk

Andrew Levchuk

Counsellor at Law

7 North Pleasant Street

Suite 2-D

PO Box 181

Amherst, Massachusetts 01002

alevchuk@agllegalnet.com

Attorney for Petitioner

11

APPENDIX A

United States v. Anthony Smith,

United States Court of Appeals for the Second Circuit, No. 19-621

Page

Summary Order and Judgment, May 26, 2020………………………………1

12

Case 19-621, Document 96-1, 05/26/2020, 2846586, Page1 of 8

19-621

United States v. Smith

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT

ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

26th day of May, two thousand twenty.

Present:

RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

19-621

ANTHONY SMITH,

Defendant-Appellant.

_____________________________________

For Appellee:

Owen C.J. Foster and Gregory L. Waples, Assistant

United States Attorneys, for Christina E. Nolan, United

States Attorney for the District of Vermont, Burlington,

VT

For Defendant-Appellant:

Andrew Levchuk, Amherst, MA

Appeal from a judgment of the United States District Court for the District of Vermont

(Reiss, J.).

1

Case 19-621, Document 96-1, 05/26/2020, 2846586, Page2 of 8

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Anthony Smith appeals from a judgment and sentence entered on March 12, 2019.

Smith

was indicted for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C.

§ 922(g). Before trial, Smith moved to suppress the ammunition, which was found in a duffel

bag near the rear passenger seat of the car in which he was traveling, and the firearm, which was

found under the driver’s seat.

gun was not loaded.

He also sought to suppress a statement he made indicating that the

The district court denied these motions. Smith proceeded to trial, where a

jury convicted him of both charges.

After Smith was sentenced, the Supreme Court decided

Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that the government must prove that a

defendant knew he was a felon in order to secure a conviction under § 922(g).

Smith argues that

the indictment and the jury instructions were defective because they failed to articulate that

requirement.

He also challenges the district court’s ruling on his suppression motions.

We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

I.

Rehaif Claims

The Supreme Court held in Rehaif that, “in a prosecution under 18 U.S.C. § 922(g) . . . ,

the government must prove both that the defendant knew he possessed a firearm and that he knew

he belonged to the relevant category of persons barred from possessing a firearm.”

2200.

139 S. Ct. at

Neither the indictment charging Smith nor the jury instructions at his trial articulated the

knowledge requirement identified by the Court in Rehaif.

Because Smith did not challenge this

failure below, we review his claim “for plain error, considering whether (1) there is an error; (2)

the error is clear or obvious . . . ; (3) the error affected the appellant’s substantial rights; and (4)

2

Case 19-621, Document 96-1, 05/26/2020, 2846586, Page3 of 8

the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”

See

United States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020) (quotation marks omitted).

As to Smith’s claim that the indictment was jurisdictionally defective because it did not

allege an element of the offense, we rejected this claim in United States v. Balde, 943 F.3d 73 (2d

Cir. 2019). Indeed, Smith appears to have abandoned this claim in his reply brief. We held in

Balde that an indictment that tracks the language of the statute is sufficient to confer jurisdiction.

See id. at 89–90.

The indictment here mirrors the words of the relevant statute. Thus, “the

indictment’s failure to allege that [Smith] knew that he was [a felon] was not a jurisdictional

defect.”

Id. at 92.

Smith’s claim of instructional error is similarly foreclosed by our recent decision in Miller,

954 F.3d 551.

In Miller, we rejected the argument that the district court plainly erred by failing

to instruct that § 922(g) requires the government to prove knowledge of felon status. Id. at 557–

60.

We concluded that the defendant’s challenge failed at the fourth prong of our plain-error

analysis, which allowed us to look beyond the trial record at the defendant’s presentence

investigation report (“PSR”). Id. at 559–60.

Relying on the PSR, we reasoned that, because the

defendant had been sentenced to and served more than one year in prison for a prior felony

conviction, he necessarily knew of his felon status and “would have stipulated to knowledge of his

felon status to prevent the jury from hearing evidence of his actual sentence.”

same is true here:

Id. at 560.

The

Smith has multiple prior felony convictions, was sentenced to over one year

in prison for two of those crimes, and served nearly seven years in prison for one prior conviction.

Smith, like Miller, stipulated to the existence of a prior felony in order to prevent its details from

being placed before the jury. See Miller, 954 F.3d at 558–59 & n.18. While neither stipulation

specifically addressed the defendant’s knowledge of his felon status, “we have no doubt that, had

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the Rehaif issue been foreseen by the district court, [Smith] would have stipulated to knowledge

of his felon status.”

Id. at 560. Thus, the erroneous instruction does not warrant vacatur of

Smith’s conviction.

II.

Motions to Suppress

“We review a district court’s decision on a suppression motion de novo on questions of law

and for clear error in factual determinations.”

United States v. Gonzalez, 764 F.3d 159, 165 (2d

Cir. 2014).

A. Fourth Amendment

Smith argues that the district court erred in denying his motion to suppress the firearm and

ammunition found in the Chevrolet Trailblazer in which he was traveling.

We disagree.

The

district court found that, when Vermont State Police Corporal George Rodriguez first approached

the vehicle, “he observed the driver, a child in the backseat, and [Smith] in the reclined passenger

seat.”

App’x 125.

Rodriguez

asked [the driver] if Smith had any bags in the car and she responded he had one in

the trunk. He requested her consent to search the vehicle . . . [and she] signed a

written consent form allowing Corporal Rodriguez to search her vehicle. It stated:

“I freely give my permission to CPL Rodriguez . . . to conduct a complete search

of [the Trailblazer] and its contents here under my control.”

App’x 125.

Rodriguez proceeded to search the car.

“In the backseat, next to where the child

had been seated, he saw an open and unzipped red and black canvas bag with no tags or

identification with a Ziploc bag full of .22 bullets on top. . . . The bag contained large male

clothing.” App’x 125–26.

Smith primarily argues that, while the driver of the vehicle consented to the search, Smith

did not, so the search of his bag was unlawful.

This argument is unavailing.

The Fourth

Amendment’s touchstone is reasonableness and the Supreme Court has “long approved consensual

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searches because it is no doubt reasonable for the police to conduct a search once they have been

permitted to do so.”

See Florida v. Jimeno, 500 U.S. 248, 250–51 (1991); Illinois v. Rodriguez,

497 U.S. 177, 183–84 (1990).

“The standard for measuring the scope of a suspect’s consent

under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical

reasonable person have understood by the exchange between the officer and the suspect?”

Jimeno, 500 U.S. at 251.

Officers may reasonably conduct a search even if the consenting party

lacks actual authority to consent so long as “the facts available to the officer . . . warrant a man of

reasonable caution in the belief that the consenting party had authority.” Rodriguez, 497 U.S. at

188 (quotation marks and alterations omitted).

Here, Rodriguez reasonably believed that the driver had authorized him to search the entire

car, including the duffel bag, because the written consent stated that Rodriguez could search the

car and its contents.

See Jimeno, 500 U.S. at 251(“[I]t [is] objectively reasonable for the police

to conclude that [a] general consent to search [a] car include[s] consent to search containers within

that car.”); see also United States v. Sparks, 287 F. App’x 918, 920–21 (2d Cir. 2008) (“[T]he

officer requested—and [the suspect] provided—consent to search ‘the vehicle and the contents

therein.’ Given the broad scope of that consent, it was objectively reasonable for the officer to

believe that it covered the bags inside the car.”); United States v. Snow, 44 F.3d 133, 135 (2d Cir.

1995) (“[A]n individual who consents to a search of his car should reasonably expect that readilyopened, closed containers discovered inside the car will be opened and examined.”).

Smith

insists that, because the bag contained men’s clothing, it clearly belonged to a man and not to the

female driver.

Thus, it was unreasonable for Rodriguez to believe that the bag fell within the

scope of the driver’s consent and he should have asked Smith before rummaging through the bag.

Not so.

Police officers need not canvass potential objectors before conducting a lawful search

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based on the voluntary consent of an individual with apparent authority, like the driver here.

United States v. Lopez, 547 F.3d 397, 399–400 (2d Cir. 2008).

See

Moreover, the driver stated that

Smith had a single bag in the trunk. Based on that information, Rodriguez reasonably believed

that the bag on the back seat did not belong to Smith. Indeed, Smith’s argument presumes that

Rodriguez found the bullets after seeing that the duffel bag contained men’s clothing.

district court found that the bullets were in a Ziploc bag on top of the clothing.

But the

Thus, Rodriguez

found the bullets before he had any reason to believe that the bag did not belong to the driver.

Finally, the gun was found beneath the driver’s seat, not in the bag, and the driver’s consent plainly

extended to that area.

Rodriguez reasonably searched Smith’s bag pursuant to the driver’s consent.

Accordingly, the district court properly denied Smith’s motion to suppress the firearm and

ammunition found in the Trailblazer.

B. Fifth Amendment

Smith next argues that his statement to Rodriguez that “the gun wasn’t loaded,” App’x 82,

should have been suppressed. We disagree. Before transporting Smith to a detention facility

upon his arrest, Rodriguez read Smith his Miranda rights and Smith chose to remain silent. See

generally Miranda v. Arizona, 384 U.S. 436 (1966).

Nevertheless, during the drive, Smith asked

Rodriguez “what was going on” and Rodriguez informed him “that the ATF [the federal Bureau

of Alcohol, Tobacco, and Firearms] was adopting the case” and that “they’re always willing to

work out a plea deal.” App’x 82.

because the gun wasn’t loaded.”

Smith responded, “[A]t least it’s not a violent felony . . .

App’x 82.

Rodriguez had not informed Smith that the gun he

recovered from the vehicle was unloaded.

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“[T]he Miranda safeguards come into play whenever a person in custody is subjected to

either express questioning or its functional equivalent.”

300–01 (1980).

Rhode Island v. Innis, 446 U.S. 291,

Thus, Miranda rights attach when a police officer uses “words or actions . . . that

they should have known were reasonably likely to elicit an incriminating response.” Id. at 302

(emphasis omitted).

Where, as here, a person invokes the right to remain silent, Miranda

guarantees that a person’s “right to cut off questioning” will be “scrupulously honored.” Michigan

v. Mosley, 423 U.S. 96, 104 (1975) (quoting Miranda, 384 U.S. at 474, 479); see also, e.g.,

Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda

warning was given and that it was understood by the accused, an accused’s uncoerced statement

establishes an implied waiver of the right to remain silent.”).

“This is not a case . . . where the police failed to honor a decision of a person in custody to

cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting

in repeated efforts to wear down his resistance and make him change his mind.” Mosley, 423

U.S. at 105–06.

Rather, Rodriguez refrained from engaging with Smith after Smith invoked his

right to silence until Smith asked “what was going on.”

App’x 82.

Rodriguez’s response,

offering an explanation and prediction of what would happen next, did not represent an

impermissible failure to honor Smith’s invocation of his right to silence. See Gonzalez, 764 F.3d

at 167.

Accordingly, the district court correctly denied Smith’s motion to suppress his statement

that the gun was not loaded.

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*

*

*

We have considered Smith’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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