Petition for Writ of Certiorari — Arthur Tyrone Lee, Jr., Petitioner v. United States

No. ___________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________

ARTHUR TYRONE LEE, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

____________________

On Petition For A Writ Of Certiorari

From The United States Court Of Appeals For The Eighth Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

PARRISH KRUIDENIER DUNN GENTRY

BROWN BERGMANN & MESSAMER, L.L.P.

Alfredo Parrish

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email:

aparrish@parrishlaw.com

i

QUESTIONS PRESENTED FOR REVIEW

Whether, on plain error review and following this Court’s decision in Rehaif v.

United States, 139 S. Ct. 2191 (2019), a defendant’s stipulation at trial that he had

been convicted of a crime punishable by more than a year in prison, see 18 U.S.C. §

922(g)(1), but silent as to his knowledge of that conviction at the time he was alleged

to possess the firearm, was plain error warranting relief on the sufficiency of the

evidence?

Whether the Eighth Circuit, on one side of a circuit split, erred in relying on a

defendant’s stipulation at trial that he had been convicted of a crime punishable by

more than a year in prison while conducting its plain error analysis, where that

stipulation was entered at a time the defendant could not have known its effects

based on case law overturned by Rehaif v. United States, 139 S. Ct. 2191 (2019).

ii

RELATED PROCEEDINGS

I.

United States v. Arthur Tyrone Lee Jr., S.D. Iowa No. 4:18-CR-061-JAJHCA; Judgment entered February 25, 2019.

II.

United States v. Arthur Tyrone Lee Jr., Eighth Circuit Court of Appeals

No. 19-1421; Judgment and Opinion entered July 24, 2020.

III.

United States v. Arthur Tyrone Lee Jr., Eighth Circuit Court of Appeals

No. 19-1421; Mandate issued August 17, 2020.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .......................................................................... i

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

OPINIONS BELOW ................................................................................................................... 1

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

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

STATEMENT OF THE CASE ................................................................................................. 2

1.

Procedural background. .............................................................................................. 2

2.

Facts underlying the conviction for felon in possession of a firearm. .............. 3

REASONS RELIED ON FOR ALLOWANCE OF THE WRIT......................................... 6

1.

The Eighth Circuit erred in its application of plain error review under

United States v. Olano, 507 U.S. 725 (1993), where Rehaif v. United States meant

that the District Court committed error instructing the jury on the § 922(g)(1)

offense. ...................................................................................................................................... 6

2.

The United States Court of Appeals for the Eighth Circuit has entered a

decision conflicting with decisions of other United States Courts of Appeals in

evaluating plain error after Rehaif v. United States. .................................................... 8

CONCLUSION .......................................................................................................................... 16

APPENDIX

Judgment entered February 25, 2019, United States v. Arthur Tyrone Lee Jr., S.D.

Iowa No. 4:18-cr-00061-JAJ-HCA .............................................................................. A2

Judgment entered July 24, 2020, United States v. Arthur Tyrone Lee Jr., Eighth

Circuit Court of Appeals No. 19-1421 ........................................................................ A9

Opinion entered July 24, 2020, United States v. Arthur Tyrone Lee Jr., 814 Fed.

Appx. 170 (8th Cir. 2020) (Mem) .............................................................................. A10

Stipulation re: Felony Conviction, October 12, 2018............................................... A14

iv

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................................ 12

Brasfield v. United States, 272 U.S. 448 (1926) ......................................................... 11

In re Winship, 397 U.S. 358 (1970) ............................................................................... 4

Jones v. United States, 526 U.S. 227 (1999)............................................................... 12

Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) ........................................ 10

Old Chief v. United States, 519 U.S. 172 (1997) .......................................................... 4

Puckett v. United States, 556 U.S. 129 (2009) ........................................................... 11

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) .............................................................. 12

Rehaif v. United States, 139 S. Ct. 2191 (2019) ........................................................... 3

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) .......................................... 11

Silber v. United States, 370 U.S. 717 (1962) .............................................................. 11

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

United States v. Conley, 802 Fed. Appx. 919 (6th Cir. 2020) ...................................... 9

United States v. Cook, 970 F.3d 866 (7th Cir. 2020).............................................. 9, 14

United States v. Davies, 942 F.3d 871 (8th Cir. 2019) ............................................... 15

United States v. Goodie, 524 F.2d 515 (5th Cir. 1975), cert. denied 425 U.S. 905

(1976) ................................................................................................................. 14

United States v. Lara, 970 F.3d 68 (1st Cir. 2020) ...................................................... 9

United States v. Lee, 814 Fed. Appx. 170 (8th Cir. 2020) (Mem) ........................ 1, 3, 6

United States v. Medley, 972 F.3d 399 (4th Cir. 2020) ................................ 8, 9, 12, 13

United States v. Moore, 954 F.3d 1322 (11th Cir. 2020).............................................. 9

United States v. Oliver, 683 F.2d 224 (7th Cir. 1982)................................................ 14

United States v. Owens, 966 F.3d 700 (8th Cir. 2020) ........................................... 6, 10

v

United States v. Pruner, 606 F.2d 871 (9th Cir. 1979) .............................................. 14

United States v. Reed, 974 F.3d 560 (5th Cir. 2020) .................................................... 9

United States v. Thomas, 615 F.3d 895 (8th Cir. 2010) ............................................... 5

United States v. Vasquez, 818 Fed. Appx. 93 (2d Cir. 2020) ....................................... 9

United States v. Wiley, 478 F.2d 415 (8th Cir. 1974), cert. denied 419 U.S. 879

(1974) ................................................................................................................. 14

United States v. Williams, 588 F.2d 92, 92-93 (4th Cir. 1978) (per curiam) ............ 14

Statutes

18 U.S.C. § 924 ........................................................................................................... 2, 3

18 U.S.C. §3231 .............................................................................................................. 1

21 U.S.C. § 841 ............................................................................................................... 2

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

28 U.S.C. §1291 .............................................................................................................. 1

Other Authorities

Eighth Cir. Mod. Crim. Jury Inst. No. 6.18.922A (2017) .......................................... 14

1

OPINIONS BELOW

On July 24, 2020, the Eighth Circuit affirmed the district court for the

Southern District of Iowa’s decision in an unpublished opinion. United States v. Lee,

814 Fed. Appx. 170 (8th Cir. 2020) (Mem). App. A10.1

JURISDICTION

Jurisdiction of the district court was pursuant to 18 U.S.C. § 3231. Judgment

was entered February 25, 2019. App. A2. The Notice of Appeal was filed February 25,

2019. (DCD 120).2 Jurisdiction of the Eighth Circuit was pursuant to 28 U.S.C. §

1291. The opinion of the court was entered July 24, 2020, App. A10. This Court has

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

1 “App. A#” refers to the attached appendix.

2 “DCD” refers to the District Court Docket Number in United States v. Arthur Tyrone

Lee Jr., S.D. Iowa No. 4:18-CR-061-JAJ-HCA.

2

STATUTORY PROVISIONS

18 U.S.C. § 922 (g)(1)

(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 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.

18 U.S.C. § 924 (a)(2)

(a)(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 OF THE CASE

1. Procedural background.

On March 29, 2018, Lee was indicted on three counts: Count 1, possession with

intent to distribute 50 grams or more of actual methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A); Count 2, possession of a firearm in furtherance

of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i); and Count 3, possession

of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (DCD 19).

A jury convicted him on all counts.

On February 25, 2019, Lee was sentenced to 360 months’ imprisonment. (DCD

76, 121). Notice of appeal was filed February 25, 2019. (DCD 122). Lee raised the

following issues:

I.

Prosecutorial misconduct in the form of slave remarks during opening

statements and closing arguments created unquantifiable error

3

warranting a new trial.

II.

There was insufficient evidence to support the verdicts.

(Appellant’s Br., United States v. Lee, 8th Cir. No. 19-1421 (Apr. 30, 2019)).

On June 21, 2019, this Court issued its decision in Rehaif v. United States,

holding that the word “knowingly” in 18 U.S.C. § 924(a)(2) applies to both the

defendant’s conduct and status for purposes of conviction under 18 U.S.C. § 922(g).

139 S. Ct. 2191 (2019). On December 4, 2019, the court of appeals ordered the “parties

. . . to file adversarial briefs on whether there was a plain error warranting relief on

the sufficiency of evidence in light of Rehaif v. United States, 139 S. Ct. 2191 (2019).”

In a supplemental brief, Lee raised the issue related to Rehaif: “In light of

Rehaif, the evidence was insufficient to support the verdict of felon in possession of a

firearm.” On July 24, 2020, the Eighth Circuit affirmed the district court. App. A10.

This Petition for Writ of Certiorari followed.

2. Facts underlying the conviction for felon in possession of a firearm.

Lee challenged the sufficiency of the evidence for his conviction under §

922(g)(1) both in moving for a judgment of acquittal, and by raising the issue on direct

appeal. See, e.g. Lee, 814 Fed. Appx. at 171. Regarding Lee’s actual or constructive

possession of the firearm, the evidence showed that it was found at 2907 Third Street.

The evidence that Lee lived at this address was shaky at best: the house was owned

by a Mr. Schaer, three other people had belongings at the home, and a fourth person

was clearly living at the home. Mr. Schaer testified that Lee was not living at the

residence at the time that the firearm was recovered. (DCD 105 at 84-85, 87). There

was no physical evidence, i.e., DNA or fingerprints, tying Lee to the firearm. Only one

4

witness – Mr. Brown – tied the firearm to Lee, and Brown’s testimony was vague,

non-specific, not corroborated, and stale. (DCD 106 at 123, 126, 128-29, 135-40, 20910, 263-64).

After Lee’s sentencing, the Supreme Court decided Rehaif, clarifying that the

government was also required to prove beyond a reasonable doubt that Lee knew he

was a convicted felon. As an element of the offense, the issue of whether Lee knew he

was a convicted felon at the time he was alleged to possess the firearm was required

to be presented to the jury. In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due

Process Clause 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.”).

At trial, Lee stipulated that “on or about December 13, 2017,” he was convicted

of a crime punishable by a term of imprisonment exceeding one year. App. A14. The

purpose of this stipulation was strategic: Lee intended to avoid the jury hearing

evidence about the nature of the prior offenses. C.f. Old Chief v. United States, 519

U.S. 172 (1997) (holding that the government cannot introduce evidence concerning

the nature of a prior offense when a defendant concedes the fact of a prior conviction).

The jury heard no evidence as to whether Lee knew that this conviction was for a

crime punishable by imprisonment exceeding one year, and the stipulation did not

speak to this issue. The jury did not hear what crime his prior conviction was for,

what Lee’s actual punishment was, or any details about the conviction.

The presentence investigation, drafted after trial, revealed that Lee had three

5

prior convictions which made him a felon:

•

In 2001, a state conviction for possession of cocaine base with intent to deliver.

(DCD 104 ¶ 51).

•

In 2007, a state conviction for possession of marijuana with intent to deliver,

as a second subsequent offense. (Id. at ¶ 56).

•

In 2008, a state conviction for possession of marijuana, third offense. (Id. at ¶

57).

For each of these convictions, the circumstances surrounding the conviction were

such that Lee could have raised reasonable doubts as to whether he understood his

status as a felon. The 2001 conviction initially involved a suspended sentence – Lee

went nearly a year after his conviction before his probation was revoked and he was

returned to prison. (Id. at ¶ 51). For the convictions in 2007 and 2008, Lee was

participating in drug court in an attempt to avoid conviction and imprisonment;

however, he was unable to complete the program. (Id. at ¶¶ 56, 57). Even though he

was sentenced to terms of imprisonment greater than one year in each of those cases,

he spent much of his sentence on work release. (Id.). None of this information was

presented to the jury.

Lee did not challenge the knowledge of felon status at trial because prior to

Rehaif, it would have been futile. See, e.g. United States v. Thomas, 615 F.3d 895,

899 (8th Cir. 2010) (“[I]t is well settled in this circuit that the government need only

prove defendant’s status as a convicted felon and knowing possession of the firearm.

[T]he knowingly element of section 922(g) applies only to the defendant’s underlying

conduct, not to his knowledge of the illegality of his actions.” (citations omitted,

second modification supplied)). However, Lee raised a challenge to the jury

6

instructions on direct appeal, after Rehaif clarified the issue. Lee, 814 Fed. Appx. at

171. The Eighth Circuit denied relief. Id.

REASONS RELIED ON FOR ALLOWANCE OF THE WRIT

1. The Eighth Circuit erred in its application of plain error review under United

States v. Olano, 507 U.S. 725 (1993), where Rehaif v. United States meant that

the District Court committed error instructing the jury on the § 922(g)(1)

offense.

The Eighth Circuit upheld Lee’s conviction under § 922(g)(1) despite this

Court’s decision in Rehaif. Applying the United States v. Olano, 507 U.S. 725 (1993)

plain error standard of review and its recent decision in United States v. Owens, 966

F.3d 700 (8th Cir. 2020),3 the court reasoned that a rational jury could have inferred

from Lee’s mere stipulation (App. A14) that he had been convicted of an offense

punishable by more than a year in prison and that he knew about his status as a

felon. Lee, 814 F. App'x at 171. Therefore, in the court’s opinion, the omission of the

Rehaif knowledge-of-status requirement from the jury instructions did not require

correction. Id.

In Owens, the defendant, like Lee, appealed his conviction for unlawful

possession of a firearm in violation of § 922(g)(1), arguing that in light of Rehaif, the

district court erred in failing to instruct the jury that the government must prove his

knowledge that he was a felon. Id. at 706. Owens held that where there is “ample

evidence” the government “could have offered” indicating that the defendant knew he

3 The defendant in Owens has filed a petition for writ of certiorari with this Court.

The petition was docketed on October 21, 2020, at Owens v. United States, S. Ct. No.

20-6098. The government’s time to reply to the petition was extend to December 21,

2020. See Docket, Owens v. United States, S. Ct. No. 20-6098 as of December 1, 2020.

7

was convicted of a crime punishable by imprisonment exceeding one year, jury

instruction error does not satisfy the fourth prong of plain-error review: the error does

not “seriously affect[] the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citing Olano, 507 U.S. at 736). In Owens, the “ample evidence”

included convictions for eight felonies in a Missouri state court, “including seconddegree murder, attempted first-degree robbery, armed criminal action, and firstdegree assault.” Id. at 706. As a result of these convictions, the defendant was

sentenced to eighty years imprisonment, and served twenty-two years prior to being

paroled. Id. By contrast, there was not “ample evidence” against Lee: He had three

previous convictions, did not serve more than a few years total, and was involved in

deferred judgment programs such as drug court. (DCD 104 at ¶¶ 51, 56-57).

The Eighth Circuit’s decision to rely on Lee’s stipulation – and only Lee’s

stipulation – while conducting plain error review was error. Unlike Owens, this was

not an obvious case for finding that Lee was not prejudice. Lee went to trial and

vigorously challenged the evidence that he possessed the firearm. There was evidence

from which he could have argued that he did not know he was a felon. Further, as

discussed below with regard to the circuit split, the stipulation was not reliable

evidence that Lee knew he was a felon, given the circumstances under which he

entered the stipulation. The Eighth Circuit’s reliance on the stipulation alone does

not promote the “fairness, integrity, or public reputation of judicial proceedings,”

Olano, 507 U.S. at 736, rather it creates an impression that the government and the

judiciary can shift the rules arbitrarily, with no consequences, while Lee must live

8

with the decisions he made under the old regime.

2. The United States Court of Appeals for the Eighth Circuit has entered a

decision conflicting with decisions of other United States Courts of Appeals in

evaluating plain error after Rehaif v. United States.

In contrast with the Eighth Circuit, the Fourth Circuit has found that Rehaif

instructional errors can satisfy the fourth prong of Olano: they “seriously affect the

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

Medley, 972 F.3d 399, 418 (4th Cir. 2020), rh’g en banc granted Nov. 12, 2020 (citing

Olano, 507 U.S. at 736).4 Prior to Rehaif, contesting the “knowledge” element in a

felon in possession of a firearm case was futile. Id. at 413. Therefore, the defendant

was not truly on notice of the elements of the crime prior to trial. Id. at 414. This lack

of notice would naturally impact the defendant’s entire strategy at trial:

[W]here the Government does not even charge the defendant with those

specific violations, defense counsel could have made the strategic

decision to spend valuable time before the jury challenging the

Government’s evidence on the essential elements. Speculating that a

defendant could not have challenged an element not then at issue

represents an untoward leap of logic.

Id. at 413-14 (quoting United States v. Brown, 202 F.3d 697, 700 & n.18 (4th Cir.

2000) (modifications supplied)). As a result, despite the government’s arguments that

the defendant’s knowledge could easily be proved, the defendant’s substantial rights

were prejudiced by the instructional error. Thus, the Medley court exercised its

discretion to correct the errors: it vacated the defendant’s conviction under § 922(g)(1)

4 The Fourth Circuit Court of Appeals has not yet indicated whether it will hear oral

arguments on the petition for rehearing en banc. The petition for rehearing was

granted on November 12, 2020. It is uncertain when an opinion will issue. See Fourth

Circuit Court of Appeals Docket #18-4789, United States v. Jovon Medley, as of

December 7, 2020.

9

and remanded to the district court, instructing it to dismiss the charge without

prejudice.

The majority of the Circuits have sided with the Eighth Circuit, allowing

convictions to stand despite Rehaif jury instruction errors on the assumption that

defendants’ stipulation to their status as a felon means that their convictions are not

unjust. See United States v. Moore, 954 F.3d 1322, 1337 (11th Cir. 2020); United

States v. Lara, 970 F.3d 68, 84-85 (1st Cir. 2020); United States v. Vasquez, 818 Fed.

Appx. 93, 95 (2d Cir. 2020); United States v. Reed, 974 F.3d 560, 563-63 (5th Cir.

2020); United States v. Conley, 802 Fed. Appx. 919, 923-24 (6th Cir. 2020); United

States v. Benamor, 937 F.3d 1182, 1188-89 (9th Cir. 2019). However, in a Rehaifchallenge to a conviction for unlawful drug user in possession of a firearm under 18

U.S.C. § 922(g)(3), the Seventh Circuit followed the Fourth Circuit’s lead in

recognizing that the change in law requires the court to view the defendant’s prior

stipulations, admissions, and indeed, entire trial strategy through a different lens:

The government’s case against Cook was certainly solid, and, again, we

view it as quite possible that a properly instructed jury would have

convicted him. But taking into account the totality of the evidence,

including evidence beyond the trial record, we are not convinced that

Cook’s conviction was inevitable.

United States v. Cook, 970 F.3d 866, 885 (7th Cir. 2020). The Fourth and Seventh

Circuits’ decisions are better-reasoned and protect a defendant’s right to a

fundamentally fair trial, unlike those cases in the remaining circuits.

The approach in the Fourth Circuit and Seventh Circuits correctly applies

Olano to protect a defendant’s right to a fundamentally fair trial. Lee, like the

defendant in Medley, was only convicted because of a stipulation that he had

10

previously been convicted of a felony. From this stipulation the juries concluded that

Lee and Medley were prohibited from possessing firearms under § 922(g), but the

juries had no information as to what those felonies were or whether the defendants

knew they were felons. Lee’s decision to stipulate to his status as a felon, and indeed

his entire trial strategy, was tainted by the misunderstanding of § 922(g)(1) that

existed prior to this Court’s opinion in Rehaif. Further, there was evidence that would

support his contention that he did not know he was a felon based on the circumstances

of his convictions, which included a suspended sentence, participation in drug court,

and extensive work release. (DCD 104 at ¶¶ 51, 56-57). In the Fourth and Seventh

Circuits, Lee would have been granted a new trial. This conclusion is more consistent

with this Court’s decisions in Olano and Rehaif, and should prevail over the contrary

decisions in the Eighth Circuit and elsewhere.

In Olano, this Court set out four steps for conducting plain error review. 507

U.S. at 733-37. The first two steps – that there was error and the error was obvious

– are not at issue in this case in light of this Court’s ruling in Rehaif. See, e.g. Owens,

966 F.3d at 706 (recognizing that the jury instructions omitting the Rehaif mens rea

instruction are “obvious error.”). At step three, the defendant must “show a

reasonable probability that, but for the error, the outcome of the proceeding would

have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016).

At step four, the defendant must show that failing to correct an error would “seriously

affect the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507

U.S. at 736 (cleaned up). These steps are meant to ensure respect for the court’s

11

procedural rules for claim processing and preserving error, with a back-stop (step

four) to prevent formalism from overriding a defendant’s right to a fair trial.5

Accordingly, a defendant is not required to demonstrate that he was innocent,

or even that it is likely he would be acquitted, if the error had not occurred. Id. at

736-37 (“[W]e have never held that a Rule 52(b) remedy is only warranted in cases of

actual innocence. . . . An error may ‘seriously affect the fairness, integrity or public

reputation of judicial proceedings’ independent of a defendant’s innocence.”). Rather,

the inquiry must be focused on the fundamental fairness of the trial. A broad category

of errors may affect the fundamental fairness of the trial, including an improperly

calculated guideline range (even if the final sentence includes a downward

departure), Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018); a

technically insufficient indictment, Silber v. United States, 370 U.S. 717, 718 (1962);

and even asking a jury where its vote was split. Brasfield v. United States, 272 U.S.

448, 449 (1926). Jury instructions may also affect the fundamental fairness of the

trial. This happens even when there is some evidence from which a jury could have

found the element proved beyond a reasonable doubt – because the error can affect

5 This Court discussed the conflict between the need for error preservation and the

need to nevertheless protect a defendant’s trial rights in Puckett v. United States,

556 U.S. 129, 135 (2009). The plain error rule “serves to induce the timely raising of

claims and objections, which gives the district court the opportunity to consider and

resolve them. . . [a]nd of course, the contemporaneous-objection rule prevents a

litigant from sandbagging the court – remaining silent about his objection and

belatedly raising the error only if the case does not conclude in his favor.” Id. at 134.

But a “rigid and undeviating judicially declared practice under which courts of review

would invariably and under all circumstances decline to consider all questions which

had not previously been specifically urged would be out of harmony with . . . the rules

of fundamental practice.” Olano, 507 U.S. at 732 (citation omitted).

12

every aspect of the trial. Medley, 972 F.3d at 414 (“[T]he decision [not to challenge

the knowledge element] was made in the context of not having notice of the actual

charge Medley faced.”). Here, the error affected Lee’s strategic decision to stipulate

to his status as a felon, to prevent the jury from hearing about the details of his prior

convictions. If he had known that his knowledge of his status at a felon was relevant

to the trial, he would have made a different decision.

Fundamental fairness requires that every fact essential to the conviction be

“submitted to a jury and proven beyond a reasonable doubt.” Jones v. United States,

526 U.S. 227, 243 n.6 (1999); Apprendi v. New Jersey, 530 U.S. 466, 476 (2000)

(same). The right to a trial by jury is itself “ranks among the most essential”

constitutional rights, a safeguard of fundamental fairness when criminal punishment

is at stake. Ramos v. Louisiana, 140

S. Ct. 1390, 1409 (2020) (Sotomayor, J.,

concurring). The practice in the Eighth Circuit and elsewhere of finding that a

defendant received a fundamentally fair trial despite the fact that his knowledge of

his status as a felon was not proven to a jury beyond a reasonable doubt ignores these

concepts, in favor of a harsher standard for plain error that essentially requires a

defendant to prove his innocence.

By contrast, the Fourth and Seventh Circuits have not required a defendant to

prove their innocence to obtain relief. In Medley, the defendant entered into a

stipulation that he had been convicted of a crime punishable by imprisonment for a

term exceeding one year. 972 F.3d at 404. The government further pointed to other

evidence in the record (at sentencing) of the defendant’s criminal history, and argued

13

that “it would have easily proven Medley’s knowledge of his prohibited status, and

the only reason sufficient evidence was not introduced at trial was because Medley

sought to exclude this evidence as unfairly prejudicial.” Id. at 413. It was likely that,

had the defendant put the government to its burden of proving his knowledge of his

status as a felon, it could have put on substantial circumstantial evidence to establish

that element. Id. (recognizing that “[t]he Government’s contention here is not

baseless.”).

But, critically, the Fourth Circuit was not tempted to hold that the government

would have won anyways because the defendant was guilty and affirm the conviction.

Instead, it turned to considering the fairness of a trial where the defendant was not

on notice that the government had to prove his knowledge, and how the lack of

knowledge impacted the defendant’s presentation at trial:

But where, as here, we do not have a contested element because the

element emerged as a consequence of a change in law after trial, we have

held that it is inappropriate to speculate whether a defendant could have

challenged the element that was not then at issue. Brown, 202 F.3d at

700 n.18. As we put the point previously:

[W]here the Government does not even charge the

defendant with those specific violations, defense counsel

could have made the strategic decision to spend valuable

time before the jury challenging the Government’s

evidence on the essential elements. Speculating that a

defendant could not have challenged an element not then

at issue represents and untoward leap of logic.

Id.

The same must be said here. Because Medley was never put on notice

that the Government had to prove he knew his prohibited status,

Medley’s knowledge of his prohibited status was orthogonal to the issues

raised at trial. Thus, any time spent before the jury challenging what

was irrelevant to the case at hand would have been futile. To accept the

14

Government’s invitation to speculate how Medley would defend against

an element not at issue, then, would represent the type of “untoward

leap of logic” the Brown Court warns against. 202 F.3d at 700 n.18.

Id. at 413-14. In short, it was not fundamentally fair to hold that a stipulation entered

into for strategic reasons established the defendant’s knowledge of his status as a

felon because that fact never entered the defendant’s (or his counsel’s or the

government’s) mind prior to the decision in Rehaif. Id., see also Cook, 970 F.3d at 885

(although the government’s case was “solid,” Rehaif changed the parameters of the

trial and opened new doors for the defendant to raise reasonable doubts).

Rehaif has changed decades of practice in felon in possession cases. Nearly

every court of appeals to consider the issue prior to Rehaif held that evidence of the

defendant’s knowledge of their status as a felon or other prohibited person was not

required to support a conviction under § 922. See, e.g. United States v. Oliver, 683

F.2d 224, 229 (7th Cir. 1982); United States v. Pruner, 606 F.2d 871, 83-74 (9th Cir.

1979); United States v. Williams, 588 F.2d 92, 92-93 (4th Cir. 1978) (per curiam);

United States v. Goodie, 524 F.2d 515, 518 (5th Cir. 1975), cert. denied 425 U.S. 905

(1976); United States v. Wiley, 478 F.2d 415, 418 (8th Cir. 1974), cert. denied 419

U.S. 879 (1974) (under a predecessor version of the same statute, citing 18 U.S.C. §

1202(a)(1)). As a result of the weight of this authority, the Eighth Circuit Model Jury

Instructions for felon in possession of a firearm did not require proof that the

defendant knew he was a felon in order to sustain a conviction – only that the

defendant had been convicted of a crime punishable by greater than one year in

prison. See Eighth Cir. Mod. Crim. Jury Inst. No. 6.18.922A (2017). Defendants

throughout the United States, including Lee, have been convicted and sentenced

15

without the government being required to prove all elements of the crime beyond a

reasonable doubt.

The Eighth Circuit has recognized in at least one case that the risk of an

innocent defendant being convicted under § 922(g)(1) without holding the government

to its burden of proof under Rehaif requires reversing a conviction under plain error

review. See United States v. Davies, 942 F.3d 871, 873-74 (8th Cir. 2019). But the

Davies opinion wrongly focuses on innocence – the defendant’s prior convictions were

pending deferred judgments under Iowa law,6 raising a strong change that he could

have persuaded the jury he did not know he was a felon. Plain error review is not

reserved only for the innocent. Fundamental fairness is constitutionally mandated

for every criminal defendant. Olano, 507 U.S. at 736-37. In a fundamentally fair trial,

Lee, like Davies, Medley, and Cook, would have been permitted to raise factual issues

regarding the circumstances of his prior convictions and what he believed about those

convictions at the time he was alleged to possess the firearm. The Eighth Circuit’s

reliance on Lee’s stipulation – and only Lee’s stipulation – at a time when the

consequences of that stipulation were entirely different, does not comport with

6 Whether a “deferred judgment” in Iowa counts as a conviction depends on context.

As explained in Davies, “Iowa law allows a court to ‘defer judgment’ against a

defendant in certain situations, and it allows a court to place him “on probation upon

conditions as it may require.” 942 F.3d at 872 (citing Iowa Code § 907.3(1)(a)). If a

defendant successfully completes the terms of their probation, judgment does not

enter and the offense can be expunged. Iowa Code § 907.9(4)(b). Ultimately, for the

purposes of a felon in possession of a firearm charge, a deferred judgment is a

conviction while a defendant remains on probation. Davies, 942 F.3d at 872-73.

However, whether a defendant understands that they are a convicted felon while on

probation is a separate matter. Id. at 874.

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fundamental fairness.

CONCLUSION

Lee was convicted without an essential element of the crime – his mens rea –

being submitted to the jury and proven beyond a reasonable doubt. That process was

not fundamentally fair. The Eighth Circuit’s contrary conclusion focuses on strategic

trial decisions – the stipulation as to his prior conviction – made at a time where Lee

was not on notice of the future effect of the stipulation. By contrast, the Fourth and

Seventh Circuits have acknowledged that the sea change in prohibited firearm

possession cases caught defendants off guard in a way that deprived them of their

opportunity to defend themselves. This Court should grant the petition for writ of

certiorari to ensure that the Courts of Appeals uphold fundamental fairness.

PARRISH KRUIDENIER DUNN GENTRY

BROWN BERGMANN & MESSAMER, L.L.P.

Alfredo Parrish

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email:

aparrish@parrishlaw.com