Petition for Writ of Certiorari — Carlos Miguel Perez, Petitioner v. United States
Supreme Court briefOct 30, 2020
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NO:
IN THE
SUPREME COURT OF THE UNITED STATES
CARLOS MIGUEL PEREZ,
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
MICHAEL CARUSO
Federal Public Defender
*Margaret Y. Foldes
Assistant Federal Public Defender
*Counsel for Petitioner
1 East Broward Boulevard, Suite 1100
Fort Lauderdale, Florida 33301-1100
Telephone No. (954) 356-7436
QUESTION PRESENTED FOR REVIEW
Whether This Court Should Grant the Petition to Resolve a
Circuit Split Regarding Whether Under Plain Error Review, a
Defendant’s Conviction for Felon-in-Possession of a Firearm in
Violation of 18 U.S.C. §§924(a)(2) and 922(g) Can Be Affirmed,
Even Though the Government Failed to Charge or Prove, and
the Jury Failed to Find, the Essential Element of Knowledge of
Prohibited Status Required Pursuant to Rehaif v. United States,
139 S.Ct. 2191 (2019)?
i
INTERESTED PARTIES
There are no parties to the proceeding other than those named in the caption
of the case.
ii
RELATED PROCEEDINGS
United States District Court (S.D. Fla.):
United States v. Carlos Perez, No. 18-20359-Cr-Scola
(October 18, 2018)
United States Court of Appeals (11th Cir.):
United States v. Carlos Perez, No. 18-14388
(June 1, 2020)
iii
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW .................................................................... i
INTERESTED PARTIES .............................................................................................. ii
RELATED PROCEEDINGS......................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION ...................................................................................................................... 1
OPINION BELOW......................................................................................................... 2
STATEMENT OF JURISDICTION .............................................................................. 2
STATUTORY AND OTHER PROVISIONS INVOLVED ............................................ 3
STATEMENT OF THE CASE....................................................................................... 4
REASON FOR GRANTING THE WRIT .................................................................... 10
This Court Should Grant the Petition to Resolve a Circuit Split
Regarding Whether Under Plain Error Review, a Defendant’s
Conviction for Felon-in-Possession of a Firearm in Violation of 18
U.S.C. §§924(a)(2) and 922(g) Can Be Affirmed, Even Though the
Government Failed to Charge or Prove, and the Jury Failed to Find, the
Essential Element of Knowledge of Prohibited Status Required
Pursuant to Rehaif v. United States, 139 S.Ct. 2191 (2019) ........................... 10
CONCLUSION............................................................................................................. 19
APPENDIX
iv
TABLE OF AUTHORITIES
CASES:
Apprendi v. New Jersey,
530 U.S. 466 (2000) ............................................................................................. 13
Crane v. Kentucky,
476 U.S. 683 (1986) ............................................................................................. 13
In re Winship,
397 U.S. 358 (1970) ....................................................................................... 13, 17
Jones v. United States,
526 U.S. 227 (1999) ............................................................................................. 13
Rehaif v. United States,
139 S. Ct. 2191 (2019) .................................................................. i, 7, 10-12, 16-17
United States v. Green,
973 F.3d 208 (4th Cir. 2020) ............................................................................... 12
United States v. Huntsberry,
956 F.3d 270 (5th Cir. 2020) ......................................................................... 11, 16
United States v. Jackson,
120 F.3d 1226 (11th Cir. 1998) ........................................................................... 11
United States v. Lara,
970 F.3d 68 (1st Cir. 2020) ................................................................................. 16
v
United States v. Maez,
960 F.3d 949 (7th Cir. 2020) ......................................................................... 12, 16
United States v. Medley,
972 F.3d 972 F.3d 399 (4th Cir. 2020) .......................................................... 12-15
United States v. Miller,
954 F.3d 551 (2nd Cir. 2020), cert. pet. filed,
S.Ct. No. 20-5407 (2020) ................................................................... 8-9, 16, 18-19
United States v. Owens,
S. Ct. No. 20-5646 (cert. petition filed September 4, 2020) ................... 8-9, 18-19
United States v. Perez,
815 Fed. Appx. 410 (11th Cir. 2020) .................................................. 5, 7-8, 13-14
United States v. Reed,
941 F.3d 1018 (11th Cir. 2019) cert. pet. filed No. 19-8679 ............................... 13
United States v. Reed,
S. Ct. No. 19-8679 (cert. petition filed June 8, 2020,
Government Response filed June 8, 2020 .............................................. 8-9, 18-19
United States v. Ward,
957 F.3d 691 (6th Cir. 2020) ............................................................................... 16
vi
STATUTORY AND OTHER AUTHORITY:
Sup.Ct.R. 13.1 ................................................................................................................ 2
Part III of the Rules of the Supreme Court of the United States ................................ 2
18 U.S.C. § 856(a)(1) ...................................................................................................... 4
18 U.S.C. § 922(g) ......................................................................................... i, 3, 5, 7, 10
18 U.S.C. § 922(g)(1) ................................................................................................ 4, 10
18 U.S.C. § 924(a)(2) ............................................................................................. i, 3, 10
18 U.S.C. § 924(c) ........................................................................................................... 6
18 U.S.C. 924(c)(1)(A)(i) ................................................................................................. 4
18 U.S.C. § 3742 ............................................................................................................. 2
21 U.S.C. § 841(a)(1) ...................................................................................................... 4
21 U.S.C. § 841(b)(1)(B)(iii) ........................................................................................... 4
21 U.S.C. § 846 ............................................................................................................... 4
28 U.S.C. § 1254(1) ........................................................................................................ 2
28 U.S.C. § 1291 ............................................................................................................. 2
United States Constitution, Amendment V.................................................................. 3
United States Constitution, Amendment VI ................................................................ 3
vii
IN THE
SUPREME COURT OF THE UNITED STATES
No:
CARLOS MIGUEL PEREZ,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
Carlos Miguel Perez respectfully petitions the Supreme Court of the United
States for a writ of certiorari to review the judgment of the United States Court of
Appeals for the Eleventh Circuit, rendered and entered in case number 18-14388 in
that court on June 1, 2020, which affirmed the judgment and commitment of the
United States District Court for the Southern District of Florida.
1
OPINION BELOW
A copy of the decision of the United States Court of Appeals for the Eleventh
Circuit, which affirmed the judgment and commitment of the United States District
Court for the Southern District of Florida, is contained in the Appendix, A-1.
judgment and commitment order is contained in the Appendix, A-2.
the trial transcript is attached in the Appendix, A-3.
the jury are attached in the Appendix, A-4.
The
An excerpt of
The jury instructions read to
And the Indictment is attached in the
Appendix, A-5.
STATEMENT OF JURISDICTION
Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and PART III of
the RULES OF THE SUPREME COURT OF THE UNITED STATES.
The decision of the court
of appeals was entered on June 1, 2020. This petition is timely filed pursuant to
SUP. CT. R. 13.1, and the Clerk’s Order extending petition deadlines due to
COVID-19.
The district court had jurisdiction because petitioner was charged with
violating federal criminal laws.
The court of appeals had jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742, which provide that courts of appeals shall
have jurisdiction for all final decisions of United States district courts.
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The following are applicable to the instant case:
United States Constitution, Amendment V
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
United States Constitution, Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
18 U.S.C. §922(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 . . . .
to . . . . possess in or affecting commerce, any firearm or
ammunition.
18 U.S.C. §924(a)(2).
Whoever knowingly violates subsection . . . (g) . . . of section
922 shall be fined as provided in this title, imprisoned not
more than 10 years, or both.
3
STATEMENT OF THE CASE
On May 2, 2018 an indictment issued against Mr. Perez charging him with
the following offenses: (1) Count I: conspiracy to possess with intent to distribute 28
grams or more of crack cocaine in violation of
21 U.S.C. § 846; (2) Count II:
possession with intent to distribute 28 grams or more of crack in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii); (3) Count III: possession of a firearm in
furtherance of a drug trafficking crime [possession with intent to distribute 28 grams
or more of crack as set out in count II], in violation of 18 U.S.C. § 924(c)(1)(A)(i), (2);
(4) Count IV: maintaining a drug-involved premises, in violation of 18 U.S.C. §
856(a)(1); and (5) Count V: possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1).
With respect to count Count V, the indictment stated:
On or about March 1, 2018, in Miami-Dade County, in the Southern
District of Florida, the defendant, CARLOS MIGUEL PEREZ, having
been previously convicted of a crime punishable by imprisonment for a
term exceeding one year, did knowingly possess a firearm and
ammunition in and affecting interstate and foreign commerce, in
violation of Title 18, United States Code, Section 922(g)(1).
Perez’s trial was held on July 23-24, 2018.
At trial, law enforcement testified that there were two bedrooms in the house,
an “east” bedroom and a “west” bedroom. There was a piece of plywood separating
the two bedrooms, but there was a gap in the plywood of about six inches, so the
bedrooms were not completely sealed off from each other.
According to law
enforcement, some personal papers of Mr. Perez were found in the west bedroom.
4
In the east bedroom, on the floor and under or near a pillow, law enforcement found
a nine millimeter gun.
At trial, the government also presented a portion of a recorded jail telephone
conversation in which Mr. Perez stated, “when I saw [the police] I ran into the other
room next to the refrigerator and [I] got rid of that shit.”
United States v. Perez, 815
Fed. Appx. 410, 413 (11th Cir. 2020).
The government also entered a certified copy of a previous Florida conviction
for possession with intent to sell or deliver cocaine.
The court instructed the jury on two elements for the 922(g) conviction,
stating:
It’s a Federal crime for anyone who has been convicted of a felony
offense to possess a firearm or ammunition in or affecting interstate or
foreign commerce.
The Defendant can be found guilty of this crime only if all the
following facts are proved beyond a reasonable doubt:
(1)
the Defendant knowingly possessed a firearm or
ammunition in or affecting interstate or foreign commerce; and
(2) before possessing the firearm or ammunition, the Defendant
had been convicted of a felony – a crime punishable by imprisonment
for more than one year.
(App-4 at p. 15).
On July 24, 2018, the jury returned a guilty verdict against Perez on all
counts.
With respect to the felon-in-possession charge, the verdict read as follows:
5
After the trial, the United States Probation Office prepared a Presentence
Investigation Report (“PSI”).
According to the PSI, Perez qualified for an enhanced
sentencing range of 360-life as a career offender based on two prior Florida
convictions: (1) cocaine/sell/man/deliver/possess w/ intent (2013); and (2) aggravated
battery (2016).
Mr. Perez received 150 days’ incarceration for the Florida drug
crime and 75 days’ imprisonment for the Florida aggravated battery.
The PSI also
revealed that the longest sentence Mr. Perez ever served on his previous offenses
was the 150-day sentence he received in connection with the drug offense.
The PSI also stated that Mr. Perez had come to the United States from Santa
Domingo at approximately the age of 16 after both of his parents had passed away.
Without parents, he was essentially homeless, and he was not able to finish his
ninth grade studies at Miami Jackson Senior High School. The PSI also indicated
that Mr. Perez’s first language was Spanish, and that he had only a rudimentary
understanding of the English language.
The district court imposed sentence on October 10, 2018.
The court varied
down from the career offender guideline to 120 months with an additional
consecutive term of 60 months for Count III, the §924(c) conviction, which gave Mr.
6
Perez a total sentence of 180 months’ imprisonment.
Mr. Perez appealed his conviction and sentence, and the Eleventh Circuit
affirmed the judgment on May 14, 2019.
On June 21, 2019, this Court issued Rehaif v. United States, 139 S.Ct. 2191,
holding that a knowing mens rea was required as an element of the 18 U.S.C. §922(g)
offense regarding the defendant’s status that made possessing the firearm a crime.
Mr. Perez petitioned this Court for reversal in light of Rehaif.
This Court GVR’d
his case back to the Eleventh Circuit.
On remand, Mr. Perez argued that his 922(g) conviction was void because his
indictment did not charge a crime under the United States Code, and thus there was
no jurisdiction over his §922(g) offense.
He further argued that his 922(g)
conviction had to be reversed because plain error had been committed causing him
prejudice to his substantial rights, as the indictment did not charge the required
mens rea as an element, the jury was not instructed on that element, and the
government never proved that element of the case beyond a reasonable doubt. The
Eleventh Circuit agreed there was plain error, stating, “For starters, we recognize
that plain error arose when the indictment did not allege the Rehaif element, when
the jury was not required to find it beyond a reasonable doubt, and when the
government was not required to prove that Perez knew he was a felon.”
Fed. Appx. at 413.
7
Perez, 815
The Eleventh Circuit found that it could look to the “whole record,” however,
including evidence that was not before the jury to determine whether the defendant
suffered substantial prejudice or whether there was harm to the judiciary’s
reputation or integrity.
Perez, 815 Fed. Appx. at 412.
The Eleventh Circuit looked
to such evidence to infer the defendant’s knowledge of the prohibited status.
In its
review, the Eleventh Circuit erred by inaccurately referencing certain evidence
concerning the location of the gun during a search, and statements that Mr. Perez
made during a jail telephone call to argue that Mr. Perez had the requisite intent
concerning his prohibited status.
Perez, 815 Fed. Appx. at 413. The court further
erred by relying on extrajudicial information in Mr. Perez’s PSI to infer knowledge of
the status element. Id.
The Eleventh Circuit’s method for affirming Mr. Perez’s
conviction which allows a whole record review to replace the jury function at trial of
finding each essential element beyond a reasonable doubt contradicts the approach
of the Fourth Circuit, creating a circuit split which this Court should resolve. Other
cases before this Court which raise this issue include United States v. Owens, S.Ct.
No. 20-5646 (cert. petition filed September 4, 2020; government response extended to
November 12, 2020); United States v. Reed, S.Ct. No. 19-8679 (cert petition filed June
8, 2020; government response filed October 9, 2020); and United States v. Miller, cert
pet. filed sub. nom. United States v. Mack, S.Ct. No. 20-5407 (2020) (cert. petition
filed August 14, 2020; government response filed October 16, 2020).
Accordingly,
Mr. Perez requests that this Court grant his petition for writ of certiorari and resolve
8
the circuit conflict, or alternatively, hold his case pending resolution of Owens, Reed,
or Miller.
9
REASON FOR GRANTING THE WRIT
This Court Should Grant the Petition to Resolve a Circuit Split
Regarding Whether Under Plain Error Review, a Defendant’s
Conviction for Felon-in-Possession of a Firearm in Violation of
18 U.S.C. §§924(a)(2) and 922(g) Can Be Affirmed, Even Though
the Government Failed to Charge or Prove, and the Jury Failed
to Find, the Essential Element of Knowledge of Prohibited
Status Required Pursuant to Rehaif v. United States, 139 S.Ct.
2191 (2019).
In Rehaif v. United States, this Court held that the term “knowingly” in 18
U.S.C. §924(a)(2) applies to both the possession and status elements of an 18 U.S.C.
§922(g) crime. 139 S.Ct. 2191, 2200 (2019). The Court explained that “the term
‘knowingly’ in §924(a)(2) modifies the verb ‘violates’ and its direct object, which in
this case is §922(g).” Id. at 2196.
And “by specifying that a defendant may be
convicted only if he ‘knowingly violates’ §922(g), Congress intended to require the
Government to establish that the defendant knew he violated the material elements
of §922(g).” Id. at 2196.
Those “material elements” include not only the prohibited
conduct (the firearm possession itself), but also the prohibited status that makes the
possession illegal. Id.
Therefore, whereas here the prohibited status is having
been previously “convicted of a crime punishable by imprisonment for a term
exceeding one year” under 18 U.S.C. §922(g)(1), the indictment must charge, and the
government must prove beyond a reasonable doubt, that at the time the defendant
knowingly possessed a firearm, he also knew that he had previously been “convicted
of a crime punishable by imprisonment for a term exceeding one year.”
Thus,
Rehaif clarified that “the Government must prove both that the defendant knew he
10
possessed a firearm and that he knew he belonged to the relevant category of
persons barred from possessing a firearm.”
Id.
Before the Rehaif case, the circuit courts had uniformly held that 922(g)
offenses only involved two elements:
(1) knowing possession of a firearm in
interstate commerce, and (2) evidence of a prior conviction. 11th Cir. Pattern
Criminal Jury Instructions 34.6 (2013).
Significantly, none of the circuits held that
a defendant’s knowledge of his prohibited status to possess a firearm was required.
See e.g., United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1998); Rehaif, 139
S.Ct. at 2210 n.6 (Alito, Thomas, JJ., dissenting).
Thus, prior to Rehaif, the
government never charged or proved the essential element of knowledge of status as
required.
Moreover, because pre-Rehaif circuit precedent foreclosed the issue,
defendants did not raise the issue, and thus many cases impacted by Rehaif have
been reviewed under a plain error standard on direct appeal.
As the law has continued to percolate, a circuit split has developed on how to
evaluate Rehaif errors under the plain error standard of review.
Specifically, the
circuits disagree about whether appellate courts can rely on facts outside the trial
record to determine plain error prejudice to the defendant and the court proceedings,
when the the government failed to charge or prove to the jury beyond a reasonable
doubt the essential element of knowledge of prohibited status which makes
possession of a firearm a crime.
See, United States v. Huntsberry, 956 F.3d 270,
284 (5th Cir. 2020) (“We note that our sister courts have taken different paths on
11
this issue” concerning “what sources of evidence we, as an appellate court, may
properly consider in determining whether the [Rehaif] errors affected [the
defendant’s] substantial rights”); United States v. Maez, 960 F.3d 949, 960 (7th Cir.
2020) (“The circuits have taken different approaches to the record for plain-error
review of jury verdicts in light of Rehaif.”).
The Fourth Circuit has held that review of extrajudicial facts is not
appropriate to fill in the gaps of the charges and evidence at trial.
United States v.
Medley, 972 F.3d 399, 417 (4th Cir. 2020); United States v. Green, 973 F.3d 208 (4th
Cir. 2020). The crux of the Fourth Circuit’s approach is its finding that it is
“inappropriate to speculate how [the defendant] might have defended” against the
knowledge-of-status element had it been properly raised by the government in the
charges and in the trial evidence.
Id. at 417.
The Fourth Circuit further
highlighted its discomfort with relying on extrajudicial facts that were not before the
parties at trial, because, “It would be unjust to conclude that the evidence supporting
the knowledge-of-status element is ‘essentially uncontroverted’ when [the defendant]
had no reason to contest that element during pre-trial, trial, or sentencing
proceedings.”
Medley, 972 F.3d at 417. The Fourth Circuit further acknowledged
the well understood limitations of appellate courts under such circumstances noting
that “appellate judges are especially ill-equipped to evaluate a defendant’s state of
mind on a cold record.”
Medley, 972 F.3d at 414, 418.
In light of these factors the
Fourth Circuit held that it would not rely on post-trial extrajudicial information to
12
affirm the defendant’s conviction.
Id.
In contrast, the Eleventh Circuit has taken the opposite approach.
It has
routinely relied on a whole record approach which includes reliance on extrajudicial
facts in a PSI to infer the knowledge-of-status element.
Perez, 813 Fed. Appx. at
411, citing United States v. Reed, 941 F.3d 1018 (11th Cir. 2019), cert. pet. filed No.
19-8679).
Indeed in reviewing the Eleventh Circuit’s affirmance of Mr. Perez’s
conviction, it is clear to see that its method of review creates a circuit conflict, and
implicates Fifth and Sixth Amendment rights to due process, a jury trial, and the
right to present a defense.
See, Medley, 972 F.3d at 402-03 (applying plain error
review, court concluded that affirming defendant’s conviction after finding plain
Rehaif error in the context of a trial case would “deprive [the defendant] 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.”); see also, In re Winship, 397 U.S. 358, 364
(1970) (due process, “protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which
he is charged.”); Crane v. Kentucky, 476 U.S. 683, 690 (1986) (under the Sixth
Amendment of the Constitution, criminal defendants are guaranteed, “a meaningful
opportunity to present a complete defense.”); Jones v. United States, 526 U.S. 227,
232 (1999) (“elements must be charged in the indictment, submitted to a jury, and
proven by the Government beyond a reasonable doubt.”); Apprendi v. New Jersey,
13
530 U.S. 466, 500-508 (2000) (Thomas, J. concurring) (discussing the importance of
including every essential element of the crime in the indictment).
The Eleventh Circuit’s opinion in Perez’s case also demonstrates the Fourth
Circuit’s concerns that appellate courts are “ill equipped to evaluate a defendant’s
state of mind on a cold record.”
Medley, 972 F.3d at 402-403. Utilizing the whole
record approach, the Eleventh Circuit erred by inaccurately referencing evidence
and relying on extrajudicial PSI facts to fill in the gaps.
Based on this approach, it
found that though there was plain Rehaif error, it did not cause prejudice to Mr.
Perez’s substantial rights or to the reputation or integrity of the judicial proceedings,
and thus, the conviction was affirmed.
In implementing its approach, the Eleventh
Circuit erred by inaccurately referencing evidence concerning the location of the gun
during a search and a statement made by Mr. Perez in a recorded jail telephone call.
The evidence showed through law enforcement testimony that the gun was located
in the east bedroom under or near a pillow.
(Appendix A-3).
However, the
Eleventh Circuit found in its opinion that the gun was found “near the refrigerator.”
Perez, 815 Fed. Appx. at 413.
The Eleventh Circuit then linked that erroneous
location of “near the refrigerator” to Mr. Perez’s jail call where he referenced a
refrigerator and stated that he “got rid of that shit.”
Id.
The Eleventh Circuit’s
attempt to link Mr. Perez’s statement to the gun by reference to the refrigerator was
in error because, contrary to the Eleventh Circuit’s finding, the gun was not found
“near the refrigerator.”
Id.
Furthermore, the statement “got rid of that shit” (id.),
14
used terminology that often referred to illegal drugs, and thus, was a nonsequitur in
relation to any inference relating to knowledge of a prohibited status to possess a
gun.
To fill in the gaps, the Eleventh Circuit further used its whole record review to
look to the PSI facts to infer that Mr. Perez had knowledge of his prohibited felon
status.
In particular, the Eleventh Circuit referenced Mr. Perez’s criminal history
as set forth in the PSI.
It found that Perez had an “extensive criminal history,” that
qualified him as a career offender and included five prior felony convictions.
813 Fed. Appx. at 413.
Perez,
The Eleventh Circuit also noted that he had numerous
“prior arrests for traffic offenses, misdemeanor offenses, and felony offenses.”
Id.
These facts were not before the jury, and thus, the jury could not have inferred the
knowledge of status element from them. Further, the Eleventh Circuit’s post-trial
determination utilizing such extrajudicial facts implicated the Fifth and Sixth
Amendment rights to due process, a jury trial, and the right to raise a defense.
See
e.g., Medley, 972 F.3d at 402-03.
The Eleventh Circuit’s approach also demonstrated the problem with
excessive appellate court factfinding when it referenced Perez’s prior criminal
history, but failed to integrate evidence showing that Mr. Perez’s longest sentence
was 150 days, or 5 months incarceration, which thus raised the question if Mr. Perez
with his low level of education and foreign language issues, would be aware that he
had been convicted of any offense punishable by imprisonment for a term exceeding
15
one year.
This information concerning Mr. Perez’s personal characteristics and
previous jail terms signaled a defense for Mr. Perez against the knowledge-of-status
element as it highlighted his short jail sentences, his lack of education, and his low
level rudimentary understanding of the English language which would impede his
ability to understand legal proceedings, and written legal documents and
abbreviations, and legal classifications that other individuals might be better
positioned to understand.
circuits.
The Eleventh Circuit’s approach has been used by other
See e.g., United States v. Lara, 970 F.3d 68 (1st Cir. 2020) (court looked
beyond trial record to find that plain Rehaif error did not affect the reputation and
integrity of the judicial proceedings); United States v. Miller, 954 F.3d 551 (2d Cir.
2020), cert. pet. filed S.Ct. No. 20-5407 (2020) (court affirmed conviction even though
plain Rehaif error existed; court examined PSI facts concerning prior criminal
history and found that fourth prong of plain error test was not satisfied, i.e., that
integrity and reputation of court proceedings were not harmed by upholding
conviction); United States v. Huntsberry, 956 F.3d 270 (5th Cir. 2020) (court looked
beyond trial record to find that plain Rehaif error did not affect defendant's
substantial rights or the reputation and integrity of the judicial proceedings); United
States v. Ward, 957 F.3d 691 (6th Cir. 2020) (court consulted whole record to find that
plain Rehaif error did not affect defendant's substantial rights or the reputation and
integrity of the judicial proceedings ); United States v. Maez, 960 F.3d 949 (7th Cir.
2020) (whole record review for fourth prong of plain error review, following Miller).
16
The Eleventh Circuit’s approach should be rejected by this Court as it goes
against the grain of well-established constitutional principles which require the
government to bear the burden of proving every essential element of a crime beyond
a reasonable doubt at trial.
It also conflicts with the Fourth Circuit’s approach
which would limit review to the evidence that the jury considered.
The difference
between these approaches is significant and creates unfair disparities across the
nation between similarly situated defendants who have been wrongfully convicted of
922(g) pursuant to Rehaif.
Accordingly, this court should resolve the conflict and
adopt the Fourth Circuit’s approach.
Mr. Perez’s case is an excellent vehicle with which to resolve this issue, as it
demonstrates the defects that can occur when appellate courts utilize a whole record
review that permits the use of extrajudicial information to fill in the gaps of the
charges and the trial evidence to uphold a conviction.
It amply shows how a
defendant can be convicted without all the essential elements of the crime ever being
proved to the jury, and how a defendant can be deprived of the right to raise a viable
defense through post-hoc extrajudicial determinations made based on a cold
appellate record.
The Eleventh Circuit’s approach is not fair to defendants and it
detracts from the integrity of judicial proceedings because it waters down important
rights that are enshrined in the criminal justice system through the Constitution.
See e.g., In re Winship, 397 U.S. at 363 (“[T]he duty of the Government to establish *
*
*
guilt beyond a reasonable doubt. . . . This notion – basic in our law and rightly
17
one of the boasts of a free society – is a requirement and a safeguard of due process of
law . . .”).
Other cases before this Court which raise this issue include United States v.
Owens, S.Ct. No. 20-5646 (cert. petition filed September 4, 2020, government
response extended to November 12, 2020); United States v. Reed, S.Ct. No. 19-8679
(cert petition filed June 8, 2020, government response filed October 9, 2020); United
States v. Miller, cert pet. filed sub. nom., S.Ct. No. 20-5407 (2020) (cert. petition filed
August 14, 2020; government response filed October 16, 2020).
In light of the
above, Mr. Perez requests that this Court grant his cert petition and resolve the
circuit conflict, or alternatively, that the Court hold his case pending resolution of
the issue through Owens, Reed or Miller.
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CONCLUSION
Based upon the foregoing, petitioner respectfully requests that this Court
grant his petition for writ of certiorari to the Court of Appeals for the Eleventh
Circuit, or that the Court hold his case pending resolution of the issue through
Owens, Reed, or Miller.
Respectfully submitted,
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
By:___s/Margaret Foldes______________
Margaret Foldes
Assistant Federal Public Defender
Counsel for Petitioner
Fort Lauderdale, Florida
October 29, 2020
19
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