Petition for Writ of Certiorari — Quincey Frye, Petitioner v. United States

No._________

____________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________________________

QUINCEY FRYE,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

_______________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________________________________

PETITION FOR WRIT OF CERTIORARI

_______________________________________

Marianne Mariano

Federal Public Defender

Martin J. Vogelbaum

Assistant Federal Public Defender

Counsel of Record

Federal Public Defender’s Office

300 Pearl Street, Suite 200

Buffalo, New York 14202

Telephone: (716) 551-3341

____________________________________________________________

QUESTION PRESENTED FOR REVIEW

Before this Court handed down Rehaif v. United States, 139 S.Ct.

2191 (2019), Quincey Frye was convicted of being a felon in possession

of a firearm and ammunition. 1 At his jury trial Frye stipulated to the

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fact that he’d previously been convicted of a crime punishable by in

excess of a year’s imprisonment. And, Frye did not object when the

District Court instructed the jurors that they need not find that Frye

knew of his felon “status” when he possessed the firearm in order to

convict him.

On appeal and under a plain error standard of review, Frye argued

that the evidence of his mens rea vis-à-vis his felon status was

insufficient, and that the jury was improperly instructed that it needn’t

consider Frye’s mens rea vis-à-vis his felon status. The Second Circuit,

relying on information outside of the trial record, rejected Frye’s

arguments and affirmed his conviction.

The question presented for review is:

Should the Court of Appeals have looked beyond the trial record to

1

In violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

i

Frye’s presentence investigation report to decide that there was no

plain error that seriously affected the fairness, integrity or public

reputation of judicial proceedings?

ii

Table of Contents

QUESTION PRESENTED FOR REVIEW ................................................ i

TABLE OF AUTHORITIES ..................................................................... iv

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

JURISDICTION ........................................................................................ 2

STATUTORY PROVISIONS INVOLVED ................................................ 2

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

The Offense ............................................................................................. 2

The Trial ................................................................................................. 6

The Appeal .............................................................................................. 7

REASONS FOR GRANTING THE PETITION ........................................ 8

A. The Federal Courts of Appeals are split over the proper approach

to reviewing plain error Rehaif claims arising in the trial context.

This Court’s intervention is warranted to secure uniformity among

the Circuits. ...................................................................................... 8

B. The post-Rehaif decisions of several Federal Courts of Appeal

apply plain error review in a way that conflicts with relevant

decisions of this Court. ................................................................... 12

CONCLUSION ........................................................................................ 14

iii

TABLE OF AUTHORITIES

Cases

In re Winship, 397 U.S. 358 (1970) ......................................................... 13

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

Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018) ........................ 13

United States v. Burden, 964 F.3d 339 (5th Cir. 2020) ........................... 11

United States v. Huntsberry, 956 F.3d 270 (5th Cir. 2020) ....................... 9

United States v. Johnson, 979 F.3d 632 (9th Cir. 2020) .......................... 10

United States v. Lara, 970 F.3d 68 (1st Cir. 2020) .................................. 10

United States v. Maez, 960 F.3d 949 (7th Cir. 2020) .............................. 10

United States v. Medley, 972 F.3d 399 (4th Cir. 2020) ............................ 11

United States v. Miller, 954 F.3d 551 (2d Cir. 2020) ...................... 7, 8, 10

United States v. Nasir, --- F.3d ---, 2020 WL 7041357 at *9-24

(3rd Cir. 2020) .................................................................... 11, 12, 13, 14

United States v. Olano, 507 U.S. 725 (1993) .......................... 9, 10, 11, 13

United States v. Owens, 966 F.3d 700 (8th Cir. 2020)............................ 10

United States v. Reed, 941 F.3d 1018 (11th Cir. 2020) ............................ 10

United States v. Vonn, 535 U.S. 55 (2002) .................................... 9, 12, 13

United States v. Ward, 957 F.3d 691 (6th Cir. 2020) ............................... 10

iv

Statutes

18 U.S.C. § 922(g) .................................................................................. 2, 8

8 U.S.C. § 922(g)(1)......................................................................... i, 2, 6, 7

18 U.S.C. § 924(a)(2)................................................................... i, 2, 6, 7, 8

28 U.S.C. § 1254(1) .................................................................................... 2

28 U.S.C. § 1291 ........................................................................................ 7

Rules

Fed. R. Crim. P. 29 .................................................................................... 9

v

IN THE SUPREME COURT OF THE UNITED STATES

__________

No.

QUINCEY FRYE, Petitioner

v.

UNITED STATES OF AMERICA,

__________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________

PETITION FOR WRIT OF CERTIORARI

__________

Quincey Frye respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the

Second Circuit.

OPINION BELOW

The unreported decision of the Second Circuit is available at 826

Fed.Appx. 19 (2d Cir. 2020), and attached as pages 1-13 of the appendix

to this petition.

1

JURISDICTION

The judgment of the Second Circuit entered on September 8,

2020. (A 1). 2 This petition is filed within 90 days of that date. This

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Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 922(g)(1) provides, in pertinent part:

It shall be unlawful for any person—

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) provides, in pertinent part:

Whoever knowingly violates subsection…

(g)…of section 922 shall be fined as

provided in this title, imprisoned not more

than 10 years, or both.

STATEMENT

The Offense

In October 2015 Quincey Frye finished serving a parole revocation

sentence associated with his 2012 conviction for Attempted Burglary in

the Second Degree. Back on parole in his native Rochester, New York,

2

The appendix will be cited as “A #.”

2

he was required to wear a GPS ankle “bracelet,” and placed under the

supervision of parole officer Douglas Rusinko. Rusinko permitted Frye

to stay with his girlfriend, Tiffany Granderson, at her 270 Weyl Street

apartment.

On February 2, Frye apparently removed his GPS monitor, and

Rusinko wasn’t able to locate him as a result. Rusinko secured a parole

absconder arrest warrant. Seeking to execute it, he went to 270 Weyl

Street on February 3, February 13, and March 4. On one of those visits,

he told Granderson he had an arrest warrant for Frye. At each of those

visits, he searched the house with Granderson’s permission, but failed

to find his quarry.

Doing his “due diligence,” Rusinko teamed with four other parole

officers and returned to Granderson’s apartment at 7 a.m. on March 26.

Rusinko knocked on the door until Granderson came to a window.

Rusinko told Granderson he was looking for Frye, and she denied that

Frye was in the house. Rusinko insisted that “we need to come in and

look around,” but Granderson told him she couldn’t allow the officers to

enter without permission from her parents, who she claimed were

neither present nor available by phone.

3

Rusinko turned the task of persuading Granderson over to one of

his fellows, Susan Hrovat. Hrovat found the “irritated” Granderson

“defensive at first,” and insistent that she didn’t have authority to

consent to a search even when Hrovat told her there was a warrant for

Frye. So Hrovat tacked. She told Granderson: “[W]e have permission,

this is his parole approved residence, he agreed to let us come into

wherever his parole approved residence was…” Granderson left her

window perch, came to the door, and opened it.

Standing sideways, Granderson said something that Rusinko

interpreted as permission to enter before turning and walking up the

stairs to her apartment. Officer Christopher Mack, who’d “been around

the block before,” confirmed Granderson’s verbal consent as they were

on the stairs just outside her apartment.

Once inside the apartment, the parole officers fanned out, “looking

for bodies.” Officer Augustina Torres-DeMadera found herself

responsible for securing what appeared to be a small bedroom. Cutting

the darkness with her flashlight, she spied no signs of life -- only piles of

clutter. Torres-DeMadera then looked to her right and saw a dresser. It

wasn’t flush to the wall or the window behind it, and she used her

4

flashlight to peer into the small gaps. Her attention was drawn by the

colors orange and green, and she looked closer. Realizing she was

staring at what seemed to be a rifle, Torres-DeMadera announced her

find.

Parole Officer Kelly Shearing was right behind Torres-DeMadera

and responded to her announcement by grabbing the firearm, which

turned out to be a shotgun with shells in a sleeve on the stock. She

made sure the gun wasn’t loaded and then turned it over to Hrovat, who

put it on the mattress. The Rochester Police Department was

summoned to collect the weapon.

With the shotgun secured and the police on scene, Shearing,

Mack, and Rusinko headed to the attic to continue searching for Frye.

Shearing scanned the attic with her flashlight. She saw a sleeping bag

at the far end, and told Mack and Rusinko. Hearing some movement in

the bag, the officers approached, moved aside some plywood, and

discovered Frye. They took him into custody.

5

The Trial

On May 2, 2017 a federal grand jury sitting in the Western

District of New York returned a single count indictment accusing Frye

of possessing a firearm and ammunition after conviction of a felony, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Frye pled not guilty to

the charge on May 17 and proceeded to trial over September 10-13.

The evidence the jury heard about the “conviction of a felony”

element of § 922(g)(1) came by way of Frye’s stipulation that, “[o]n or

about November 14th, 2012, the defendant was convicted in County

Court, Monroe County, New York for a crime punishable by

imprisonment exceeding one year.” And as to that element, Chief Judge

Geraci instructed the jury that, “[i]t is not necessary that the

Government prove that the defendant knew that the crime was

punishable by imprisonment for more than one year, nor is it necessary

for the defendant to have been sentenced to imprisonment for more

than one year.” Frye did not object to this instruction. The jury found

him guilty on the 13th.

On December 14, Chief Judge Geraci sentenced Frye principally to

40 months of imprisonment with three years of supervised release to

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follow. Judgment entered on December 18, and Frye filed a timely

notice of appeal on December 27.

The Appeal

The United States Court of Appeals for the Second Circuit had

jurisdiction pursuant to 28 U.S.C. § 1291. This Court decided Rehaif on

June 21, 2019, prior to the filing of Frye’s opening brief.

On appeal Frye argued that, under Rehaif, the “prior felony”

stipulation and the remainder of the Government’s trial evidence were

insufficient to prove that he knew he’d been convicted of an offense

punishable by more than a year in prison at the time he possessed the

firearm and ammunition, and that it was error for the District Court to

have instructed the jurors that they needn’t find Frye had that

knowledge in order to convict him under §§ 922(g)(1) and 924(a)(2).

The Second Circuit held that Frye’s arguments were foreclosed by

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

2F

which, relying on the fourth prong of plain error review and looking

3 Miller was decided after briefing and oral argument in Frye’s case

were completed.

7

beyond the trial evidence, it rejected arguments substantially identical

to Frye’s. As in Miller, in Frye’s case the Second Circuit observed that

the presentence investigation report disclosed a prior felony conviction

carrying with it a sentence well in excess of a year and, in light of that

information, held that any evidentiary insufficiency or error in the jury

instructions did not “seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” (A 9-11).

REASONS FOR GRANTING THE PETITION

A. The Federal Courts of Appeals are split over the proper

approach to reviewing plain error Rehaif claims arising in

the trial context. This Court’s intervention is warranted to

secure uniformity among the Circuits.

In Rehaif v. United States, 139 S.Ct. 2191, 2200 (2019), this Court

held 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.” As the dissenters in Rehaif

noted, this holding that the mens rea element extends to the defendant’s

knowledge of his own prohibited “status” overturned “the longestablished interpretation of an important criminal statute, 18 U.S.C. §

922(g), an interpretation that has been adopted by every single Court of

8

Appeals to address the question.” Id. at 2201 (Alito, J. and Thomas, J.,

dissenting).

Because of the pre-Rehaif state of the law many defendants, like

Frye, chose to stipulate to the bare fact of their prior felony convictions,

did not make Fed. R. Crim. P. 29 motions based on insufficient evidence

of mens rea, and did not object when the jury was instructed that it

needn’t find they knew they were felons at the time of possession. And

because so many defendants took this approach, the Courts of Appeals

have been tasked with adjudicating numerous claims of Rehaif error

under a plain error standard of review.

With the exception of two Circuits, every Court of Appeals to

consider a plain error Rehaif claim in a felon in possession trial case has

rejected it based on a review of evidence outside of the trial record. As

the Fifth Circuit has observed, however, the justifications for this are

various. United States v. Huntsberry, 956 F.3d 270, 284 (5th Cir. 2020).

One group of Circuits has relied on this Court’s decision in United

States v. Vonn, 535 U.S. 55 (2002) as authorizing a review of the entire

record of the case to determine whether the defendant has met his

burden to show, under the third prong of United States v. Olano, 507

9

U.S. 725, 732 (1993), that any Rehaif error affected his substantial

rights. United States v. Ward, 957 F.3d 691, 695 & n. 1 (6th Cir. 2020);

United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2020).

A second group of Circuits, including the Second Circuit, has

taken the position that this Court’s precedents do not preclude a review

of the entire case record to determine whether, under Olano’s fourth

prong, 507 U.S. at 732, any Rehaif error “seriously affected the fairness,

integrity or public reputation of judicial proceedings.” United States v.

Lara, 970 F.3d 68, 88-90 (1st Cir. 2020); United States v. Miller, 954

F.3d 551, 560 (2d Cir. 2020); United States v. Maez, 960 F.3d 949, 961

(7th Cir. 2020); United States v. Owens, 966 F.3d 700, 706-07 (8th Cir.

2020); United States v. Johnson, 979 F.3d 632, 636-639 (9th Cir. 2020).

A third Court of Appeals, the Fifth Circuit, has held that there are

two alternative routes for a reviewing court to reject a claim of Rehaif

plain error: 1) By taking judicial notice of the defendant’s prior felony

convictions and associated sentences; and, 2) By reviewing the entire

case record to determine whether any error affected the defendant’s

substantial rights or seriously affected the fairness, integrity, or public

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reputation of judicial proceedings. United States v. Burden, 964 F.3d

339, 347-348 & n. 8, 9 (5th Cir. 2020).

Finally, a fourth pair of Circuits has reversed based on Rehaif

plain error in felon in possession trial cases, and has done so while

limiting review across all four Olano prongs to the trial evidence.

United States v. Nasir, --- F.3d ---, 2020 WL 7041357 at *9-24 (3rd Cir.

2020); United States v. Medley, 972 F.3d 399, 411-419 (4th Cir. 2020). 4

3F

This four-way split among the Federal Circuits has introduced

substantial disarray into the application of the plain error standard of

review in appeals of trial cases. While, at present, the disunity is most

prominent in Rehaif-related cases, nothing about its substance confines

it to them. Going forward, plain error review will be applied differently

by different Courts of Appeals across the country in all cases arising

from a trial. That is the kind of disorder that only this Court’s guidance

can remediate.

4 Medley is pending en banc review. 828 Fed.Appx. 923 (4th Cir. 2020).

11

B. The post-Rehaif decisions of several Federal Courts of

Appeal apply plain error review in a way that conflicts

with relevant decisions of this Court.

On top of the confusion among the courts of appeal, the manner in

which several of them are applying plain error review is at odds with

relevant decisions of this Court.

First, the Circuits that have relied on Vonn for the proposition

that “a reviewing court may consult the whole record when considering

the effect of any error on substantial rights,” 535 U.S. at 59, have

severed that case from its procedural context. Vonn was about plain

error review of the voluntariness of a defendant’s guilty plea, and

consequently focused on the knowledge gleaned by the defendant over

the course of the entire proceeding in order to determine whether the

trial court discharged its obligation to provide him with due process by

ensuring that his plea was knowing and voluntary. Nasir, 2020 WL

7041357 at *14.

But the focus of a court reviewing a conviction after trial is

elsewhere. Its task is to determine whether the Government satisfied

due process and the Sixth Amendment by presenting trial evidence

12

from which a rational, properly instructed find of fact could find the

defendant guilty beyond a reasonable doubt. Id. (citing and quoting In

re Winship, 397 U.S. 358, 361 (1970)). Applying Vonn to plain error

review of a trial is akin to making a category error; plea colloquies and

trials are different animals with different characteristics, and due

process and the Sixth Amendment impose different requirements on

each of them.

Second, the Circuits which have held that a reviewing court may

consider the entire case record to determine whether the discretion

afforded by Olano’s fourth prong should be exercised are, by taking that

approach, supplanting the defendant’s due process and Sixth

Amendment rights to have a jury decide his guilt or non-guilt based on

evidence presented to it by the Government. Nasir, 2020 WL 7041357 at

*17. And further, since any claim of plain Rehaif error will necessarily

fail if the reviewing court finds evidence beyond the trial record

conclusive of the defendant’s guilt, these Circuits are also implicitly

limiting the availability of relief on plain error review to defendants

they judge actually innocent – a position this Court expressly rejected

in Rosales-Mireles v. United States, 138 S.Ct. 1897, 1906 (2018) (“Olano

13

rejected a narrower rule that would call for relief only…where a

defendant is actually innocent.”) (cited and quoted in Nasir, 2020 WL

7041357 at *17)).

The split among the Courts of Appeals has therefore also led to

the widespread misapplication of this Court’s cases and the

undermining of the Constitutional safeguards they are intended to

secure. This Court should intervene to correct these errors and clarify

the law.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Marianne Mariano

Federal Public Defender

By:

/s/ Martin J. Vogelbaum

Martin J. Vogelbaum

Assistant Federal Public Defender

Counsel of Record

December 3, 2020

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