Reply Brief — William C. McGee, Petitioner v. United States

No. 20-5773

IN THE

Supreme Court of the United States

___________

WILLIAM C. MCGEE,

Petitioner,

v.

UNITED STATES,

Respondent.

___________

On Petition for a Writ of Certiorari

To the United States Court of Appeals for the Eighth Circuit

___________

REPLY BRIEF FOR PETITIONER

___________

LAINE CARDARELLA

Federal Public Defender

Western District of Missouri

Dan Goldberg

Counsel of Record

1000 Walnut, Suite 600

Kansas City, Missouri 64106

Tel: (816) 471-8282

Dan_Goldberg@fd.org

TABLE OF CONTENTS

Page

Table of Contents ........................................................................................................... ii

Table of Authorities ...................................................................................................... iii

REPLY BRIEF FOR PETITIONER ......................................................................... 1

1. The petition for certiorari presents a related but distinct question

from the government’s petition for certiorari in United States v.

Gary. Both should be granted and decided by this Court. .................... 1

2. This petition of certiorari squarely raises the circuit split issue

pertaining to instructional error reserved by this Court in Rehaif ... 3

3. Petitioner’ case is a suitable vehicle to resolve this issue promptly

this Term. ......................................................................................................... 6

CONCLUSION............................................................................................................... 7

i

TABLE OF AUTHORITIES

Page

CASES

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ........................................... 2

Apprendi v. New Jersey, 530 U.S. 466 (2000) ......................................................... 2

Mathis v. United States, 136 S. Ct. 2243 (2016) ..................................................... 2

Rehaif v. United States, 139 S. Ct. 2191 (2019) .............................................. 1, 5, 7

Trump v. Mazars USA, L.L.P., 140 S. Ct. 2019 (2020) ....................................... 2, 3

Trump v. Vance, 140 S. Ct. 2412 (2020) ................................................................. 2

United States v. Medley, 972 F.3d 399 (4th Cir. 2020) ................................... 1, 2, 6

United States v. Stitt, 139 S. Ct. 399 (2018) ............................................................ 7

ii

REPLY BRIEF FOR PETITIONER

1. The petition for certiorari presents a related but distinct question

from the government’s petition for certiorari in United States v. Gary.

Both should be granted and decided by this Court.

The government concedes there is a circuit split warranting this Court’s

review over a related but distinct question — “whether a defendant who pleaded

guilty after a plea colloquy during which he was not informed of the knowledge-ofstatus element discussed in Rehaif is automatically entitled to relief on plain-error

review.” U.S. Br. at 2, citing to government’s petition for certiorari in United States

v. Gary, No. 20-444 (emphasis added). Petitioner agrees the question presented

regarding guilty pleas in Gary should be heard by this Court.

However, Gary will not answer the question presented in this case pertaining

to Rehaif error in jury trials. The government admits that the “guilty plea and trial

context are not identical” U.S. Br. at 2, but that understates how different these

areas of the criminal law are. This Court needs a separate vehicle to answer this

question that implicates the right to a jury trial and grand jury indictment

enshrined in the Fifth and Sixth Amendments to the Constitution. Pet. 9-16.

Critically, this is the issue that was expressly reserved by this Court in Rehaif,

whether “any error in the jury instructions in this case was harmless.” 139 S.Ct. at

2200. Petitioner’s case will allow this Court to answer that precise question.

The Fourth Circuit did not reach the Rehaif jury trial error issue in Gary —

it instead reached it in United States v. Medley, 972 F.3d 399 (4th Cir. 2020). Medley

was decided by the Fourth Circuit after Gary, but the Fourth Circuit placed little

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emphasis on Gary in its analysis in Medley. Instead, the Fourth Circuit

painstakingly analyzed the constitutional rights of the accused, and how those

rights were violated because the Rehaif element was not “charged in an indictment,

submitted to a jury, and proven beyond a reasonable doubt” as required by this

Court’s case law. Medley, 972 F.3d at 416, citing Jones v. United States, 526 U.S.

227, 243 (1999); Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).

The government is correct that Rehaif error implicates certain similar core

due process concerns in jury trials and guilty pleas. See Gary Pet. pg. 24 (arguing

that the holding of Gary is “likely” to impact jury trials). Therefore, the question

presented in this case is just as compelling as the one in Gary, if not more so,

because petitioner exercised his jury trial right and directly contested the

allegations in the indictment. This Court has repeatedly acknowledged, in differing

contexts, that the right to a jury trial is sacrosanct. See, for example, Mathis v.

United States, 136 S.Ct. 2243, 2259 (2016) (J. Thomas, concurring) (urging that

Almendarez-Torres v. United States, 523 U.S. 224 (1998) be reconsidered because

“depending on judge-found facts” at sentencing “violates the Sixth Amendment.”).

Often, when this Court is presented two distinct, but related issues for

certiorari, it grants both at the same time to resolve the issues in distinct vehicles.

See, for example, Trump v. Vance, 140 S.Ct. 2412 (2020); see also Trump v. Mazars

USA LLP, 140 S.Ct. 2019 (2020). Although both Vance and Mazars dealt with the

same broad subject of issuing subpoenas to a sitting President, the analysis of the

distinct legal issues in the two different cases was stark. Id. In short, it would have

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been chaotic for this Court to resolve the differing issues in Vance and Mazars in

one case.

The same is true as it pertains to Rehaif error in the distinct contexts of jury

trials and guilty pleas. Failing to grant certiorari in this case — or another case

that presents the distinct issue of Rehaif error in a jury trial — raises the real

possibility this Court would have to revisit the question in another Term in the

future. Based on principles of judicial economy, this Court should resolve this

exceptionally important question in this case contemporaneously with Gary.

2. This petition of certiorari squarely raises the circuit split issue

pertaining to instructional error reserved by this Court in Rehaif.

The government does not dispute that the outcome of who receives Rehaif

relief after a jury trial error turns solely on the happenstance of geography, with the

Fourth Circuit vacating and remanding defendant’s convictions and sentences,

while the Eighth Circuit is summarily affirming indistinguishable defendant’s cases

on direct appeal. See Pet. 8-11. Nor could it, because it argued in its petition for

rehearing before the Fourth Circuit that Medley created a circuit split that “upset

countless challenges to felon-in-possession convictions, and will have a profound

impact on the application of the plain error standard going forward.” Gov’t petition

for rehearing en banc in Medley, pg. 2-3 (filed October 5, 2020). The government

further argued this question is “of exceptional importance.” Id.

But the government makes the opposite argument before this Court, that the

question presented in this case “does not warrant this Court’s review at this time.”

U.S. Br. at 2. If the issue is of exceptional importance before the Fourth Circuit en

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banc, it is hard to discern why this issue would not warrant this Court’s prompt

attention, especially since the government has already filed a petition for certiorari

before this Court on the related issue in Gary.

The only reason given by the government as to why Mr. McGee’s petition for

certiorari “does not warrant this Court’s review” is to cross-reference its response in

another petition for certiorari. U.S. Br. at 2, citing to Greer v. United States, No. 198709. But when turning to the government’s response in Greer, one discovers that it

does not address petitioner’s question presented, because Greer raised a much

narrower question of whether “a circuit court of appeals may review matters outside

the trial record to determine whether the error affected a defendant’s substantial

rights.” See Greer, No. 19-8709, Question Presented. In its response in Greer, the

government acknowledged the overarching circuit split regarding Rehaif jury trial

error. See Greer U.S. Br. at 16 (“Medley appears to be at odds with the decision

below.”). However, it explained why Greer was a poor vehicle to resolve the circuit

split because “the procedural question presented” in Greer was limited to “whether

evidence outside the trial record is relevant to plain-error review of a Rehaif error.”

Greer U.S. Br. at 15-16; see also Reed v. United Stated, 19-8679, U.S. Br at 9 (“[T]his

case presents a poor vehicle for further review because petitioner has only

challenged the court of appeals’ consideration of the whole record in evaluating the

third requirement of the plain-error standard.”).

Mr. McGee’s petition for certiorari does not suffer from these same defects. In

fact, the question presented in this case is precisely the broad issue presented in

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Medley, “[w]hether omitting an essential element of the crime in both the

indictment and jury instructions may be reviewed for harmlessness . . . or whether

they are structural errors that violate a defendant’s substantial rights and

undermine confidence in the outcome of trial proceedings. . . ” See McGee Pet.,

Question Presented. Again, this issue was reserved by this Court in Rehaif, one that

is indisputably important. Rehaif, 139 S.Ct. at 2200.

The government’s other vehicle argument — that “Medley does not provide a

basis for granting the petition for a writ of certiorari” because “the government has

filed a petition for rehearing en banc in that case.” Greer, U.S. Br. at 16-17; Reed,

U.S. Br. at 9 — should also be rejected by this Court. It is unlikely that the petition

for rehearing will be granted in Medley because the Fourth Circuit denied the

government’s similar petition for rehearing in Gary. Notably, in its petition for

rehearing in Medley, the government fails to even cite to Gary, let alone explain

how the Fourth Circuit could rule in favor of the government in Medley, having

already ruled against it in Gary.

However, out of abundance of caution, this Court may simply hold this

petition for certiorari until the first conference next year on January 8, 2021, to

determine the outcome of the petition for rehearing in Medley. By then, it is likely

that the Fourth Circuit will have decided whether to deny rehearing. Waiting to

conference this case until January 2021 will also have the added benefit of allowing

this Court to conference this case along with the government’s petition for certiorari

in Gary, where the parties agreed to have the briefing completed so this Court may

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conference the case on January 8, 2021. See Gary, 20-444, motion for continuance,

filed October 13, 2020.

3. Petitioner’ case is a suitable vehicle to resolve this issue promptly

this Term.

Were the government to lose its petition for rehearing before the Fourth

Circuit in Medley, it would not be surprising if the government filed a petition for

certiorari to review the acknowledged circuit split. But it would be an unsuitable

vehicle for this Court to resolve this issue promptly this Term.

The government stressed that it filed the petition for certiorari in Gary

“at a time calculated to allow for the Court to grant certiorari and decide the case on

the merits during the current Term.” Gary Pet. 21. The petition for rehearing in

Medley was just fully briefed by the parties in the Fourth Circuit at the end of

October. Even if the Fourth Circuit swiftly ruled on the petition, the government

would need time to draft the petition for certiorari, and opposing counsel would

need at least thirty days (if not more) to file a response. Based on this timeline, it is

difficult to imagine how that case could be briefed and argued this Term.

To be sure, the Fourth Circuit’s analysis of the question in Medley was much

more comprehensive that the Eighth Circuit’s analysis, but that is because of the

improper summary affirmance by the Eighth Circuit. Pet. 12-15. Petitioner did not

have the opportunity to fully brief all the issues on appeal analyzed by the Fourth

Circuit in Medley, such as the cumulative effect of the indictment and trial errors.

See Medley, 972 F.3d at 415. But this does not make this case an unsuitable vehicle,

because petitioner focused on the instructional error issue at trial, reserved by this

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Court in Rehaif. 139 S.Ct. at 2200.1 Ultimately, the Eighth Circuit’s failure to fully

address and analyze the merits of petitioner’s appeal should not evade this Court’s

review, because of its incomplete analysis. To do so, would encourage the Eighth

Circuit to continue to issue summary affirmances of important legal issues, even in

the face of an acknowledged circuit split among its sister circuits.

Alternatively, if this Court does not intend to grant certiorari in this case but

does intend to review the issue he raises (or the related issue in Gary), petitioner

asks that his petition be held pending resolution of this Court’s chosen vehicle.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

/s/ Dan Goldberg

DAN GOLDBERG

Counsel of Record

Federal Public Defender’s Office

Western District of Missouri

1000 Walnut, Suite 600

Kansas City, Missouri 64106

Dan_Goldberg@fd.org

(816) 471-8282

1 If there any lingering concerns of issue preservation after the petition for

certiorari is granted, this Court could later remand this case after it hears the

merits of the question presented. The lower court would then be “free to determine

whether [petitioner] properly presented the argument, and to decide the merits, if

appropriate.” United States v. Stitt, 139 S.Ct. 399, 407 (2018) (remanding Mr. Sims’

case to the Eighth Circuit for further consideration).

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