Petition for Writ of Certiorari — Cortez Maurice Crumble, Petitioner v. United States
Supreme Court briefDec 7, 2020
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IN THE
SUPREME COURT OF THE UNITED STATES
CORTEZ MAURICE CRUMBLE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
Douglas L. Micko
Assistant Federal Public Defender
(Counsel of Record)
Eric Riensche
Assistant Federal Public Defender
U.S. Courthouse, Suite 107
300 South Fourth Street
Minneapolis, MN 55415
(612) 664-5858
Counsel for Petitioner
QUESTIONS PRESENTED
Under 18 U.S.C. § 922(g) & § 924(a)(2), it is a criminal offense for anyone
who falls within enumerated status categories to “knowingly” possess a
firearm or ammunition. Prior to this Court’s decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019), the circuit courts of appeal construed the
mens rea element as applicable to the possession element of the offense,
but not the status category element. By extension, circuit courts
precluded any ignorance-of-status defense. With its Rehaif decision, this
Court effected a sea change in the law, holding: “[I]n a prosecution under
18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that
the defendant knew he possessed a firearm and that he knew he belonged
to the relevant category of persons barred from possessing a firearm.” 139
S. Ct. at 2020 (emphasis added).
A great many defendants had been tried and convicted of § 922(g) &
§ 924(a)(2) offenses prior to issuance of the Rehaif decision. And prior to
Rehaif, these defendants had been precluded by longstanding circuit
precedent from: (i) ascertaining defects in charging documents which
failed to apply “knowing” mens rea to the status element; (11) challenging
trial instructions to the jury on this same ground; and (iil) presenting an
ignorance-of-status defense at trial. This Court has held that, even when
trial errors of this type were controlled by then-extant circuit authority,
plain-error review under Fed. R. Crim. P. 52(b) is applicable on direct
appeal. Against this backdrop, the questions presented are—
1
When evaluating Rehaif-derived trial errors under Rule 52(b) plainerror review, should prejudice under the “substantial rights” prong be
presumed?
2
When evaluating Rehaif-derived trial errors under Rule 52(b) plainerror review, is it permissible for an appellate court to consider
information gleaned from outside the trial record?
LIST OF PARTIES
All parties appear in the caption on the cover page of this Petition.
u
TABLE OF CONTENTS
Page
QUESTIONS PRESENT ED ndscasucssscvusssrcrsecstumascssraacevecaptieiavibliesisoususcbavustesevecareasseasivanys 1
LIST OF PARTIES ...0.. ec cesccsssceesceesceereneesseeeseenaseeesteneeseeseesceeseeesseeeeeceseeeeeeeasenseeneees ii
TABLE OF CONTENT S csssccscsxsnsscssransanssareccussesesinsanwccscssic ip gac bees Da tad ae eie il
TABLE OF AUTHORITIES ..00... ce eseeesesseecenseeeeneeenersneesneseneseseeenseensesecseeeseeeeseeaeenseneees Vv
PETITION FOR WRIT OF CERTIORARL sssasiscssnsasssnescanssvanenseunavensavaunannsessavesnits 1
OPINION BELO Wonssissscapscenscansngicgnina ctx ces piasaeeiiss tasteocenecsonnanerenenseoncesennnereanenneonsonesennsenenre 1
J URISDICTIO Nerncsonnnesonaneneransscennensnessosnn ex nes tse US en tssaNO SCANNING AILSA RR 1
RELEVANT RULE & STATUTES scnissncacsmmnmarexenimaimnanomnmmmanmamneays 2
INNO SO 106) 61) 6) 3
STATEMENT OF THE CASE isisssvssnssmiccmuvsnniieamamainammaammamne 3
REASONS FOR GRANTING THE PETITION... eee cccceseseeeseeeeeneceeeneceeeeeeneeeeenee 10
A. The questions encapsulate conflicts among the lower circuit courts. .............00006 10
1. Prejudice under Prong Three of Rule 52(b) plain-error review.............:000.000+ 10
(a). Specific showing of prejudice ............ccceeecccseeessececeecesesssesceesecessnsnecesessceseess 12
(b). Presumption of prejudice .............cccesccsecsecececeeeeeeceeececeeececececeencuceseaseceeeeenes 14
(c). Assumption of prejudice ............ccsceseesssesceseesessseececeeeseeceeceeceeeereceeseceeensccers 15
2. Scope of judicial inquiry under Rule 52(b) plain-error review ......:::c.ss0ceeseeees 16
(a). Outside trial record at Prong Three ...........cccccccccccesessssccsscsesssecesesenssscess 17
(b). Outside trial record at Prong Four............cccccccssccccesssncecessececesensceeseeeesees 18
(c). Within trial record at Prong Three and Prong Four .............:scsccseeeeeeerees 19
ii
B. The questions implicate important principles of law, carrying
a broad impact upon the administration of criminal justice... ees eeeeeeeeeees 21
C. The decision below offers an apt vehicle by which to consider
the questions presented. ............cccseccccccecsesseeneseneceesseeeceeecesseseasencssessseasasesseeseseenees 2)
CONCLUSION sicecssteascsssns:cinansaaasntcasrenensasananstns sie eisersinisrit nici WS SSkaSOSS RISD SUTRAS RUSRONEES SCIEN 24
APPENDIX
App. A. Opinion below,
(reported at 965 F.3d 642 (8th Cir. 2020)) oe. eeeeeeeseeeeeeeeeeees App. 1-4
App. B. Indictment,
(unpublished, available at No. 18-cr-17 (D. Minn.)) .............00- App. 5-7
App. C. Brief of Defendant-Appellant,
(unpublished, available at No. 19-2197 (8th Cir.)) ...........seee App. 8-21
App. D. Brief of Government-Appellee,
(unpublished, available at No. 19-2197 (8th Cir.)) .......... App. 22-32
1V
TABLE OF AUTHORITIES
Page
Cases
Henderson v. United States, 568 U.S. 266 (2018) .......ccccccccceceseeesscsessscesssssccsesesessseusevees 6
Johnson v. United Siates, 520 U.S. 461 (1997) cssssasscssacossnsseancosmsauansocisaccsonavacsiasnares 6,11
Logan v. United States, 552 U.S. 23 (2007) ......ccccccccsssccececeensescseeceeetseecsseceeeseeseeseeeens 13
Molina-Martinez v. United States, 136 S. Ct. 1838 (2016).......c.ccecccceeseeseeeeeereeeeereeeees 21
Old Chief v. United States, 519 U.S. 172 (1997).....cccccsseccesseseeesceesesereseeeensere 4, 8, 14, 15
Puckett v. United States, 556 U.S. 129 (2009) sccsssstessasvssazcssssessnavascumsievevasesunwerevaivessse 6
Rehatf v. United States, 1389 S. Ct. 2191 (2019)... cess cceccsscsssvecesnssseees passim
United States v. Benamor, 937 F.3d 1182 (Oth Cir. 2019) ......cecceeeeecceeeeeeeeeeeeeeees 14, 18
United Siaiesi0..Bbromd do, 53O%".90 AAs sti in, 2008) rmssssmresnmmnnnseensnscasmsamnnaneaed 21
United States v. Caudle, 968 F.3d 916 (8th Cir. 2020)........ccccccecssesesssecceeseceeseeesenes 8, 12
United States v. Cotton, 535 U.S. 625 (2002).........cecccceseeeeeseeescsccsscenceeeseseeesceneeeees 11, 15
United States v. Crumble, 965 F.3d 642 (8th Cir. 2020) ............ccceeeessenseeeeeeeeeeeee passim
United States v. Hollingshed, 940 F.3d 410 (8th Cir. 2019) ...........ceeeeeceeeeeeeees 8, 12, 18
United States v. Huntsberry, 956 F.3d 270 (5th Cir. 2020)..........2ccccccccceeeeeeeeeeees 13, 18
United States v. Kind, 194 F.3d 900 (8th Cir. 1999) sésssscssosassvassenscevasavarenersoasinscene 4, 22
United States v. Lomax, 87 F.3d 959 (8th Cir. 1996) ........ccccccccceseseessscceeseesseeees 4, 7, 22
United States v. Maez, 960 F.3d 949 (7th Cir. 2020)..........cc:ccccesseeeeesseeceeseeeenceeees 16, 19
United States v. Medley, 972 F.3d 399 (4th Cir. 2020)........ccccccccesseeereceeeereees 14, 15, 19
Vv
United States v. Miller, 954 F.3d 551 (2d Cir. 2020)...........c..cccccseecessssceteeeeees 15, 18, 19
United States v. Olano, 507 U.S. 725 (1998) ........cccccccccssssssnseeeceeceseseseeeeessseeeeeeee passim
United States v. Reed, 941 F.3d 1018 (11th Cir. 2019) 220... eeeeeeeeeee eee 14, 16, 18
United States v. Syme, 276 F.3d 131 (8d Cir. 2002) .0.......ccccccccesesessessseeeeeseeeessneseeeees 21
United States v. Ward, 957 F.3d 691 (6th Cir. 2020) ............eeeeeeeeseseeeeeeeeeeereneees 13, 18
Statutes
18 U.S.C. § 921 :saicisnsicccssmnmeanmmnrasamansa ea eT passim
18 U.S.C. § 922. ccccccccccccccececceeseceseesencnsnsnseescacesaeceseceeeceserereucseseseeeeeaseesensneeee passim
18 U.S.C. § 92 A iecusssscncsccncenccccsnsnirecteecReetasUceccaste NTC EET SEESBRECB IEEE RTT passim
28 U.S.C. § 1254 sscssnncesnenasaonnoanesnxenaamnasssckinnswaannnekenennhencaniekcaneueuvad cen aaeciuaskesisneniananinnaneeses 1
Minn. Stat. § 609.165.2200... ccecctceeceseecesseeeeesesnceseesceecceceseeeeeeeeeeeeeeecceseesensseeeceeeeeees 7, 23
Rules
Fed. R. Crim. P. 52()) scsscessscanesupessyaacesicccsstasaanvasaqeuazcceuassoimepascuccuscnendcnssusennsvseesuansey passim
Fed. R. Evid. 404 jaescsicossnssvacopsunensessvsunauvesnsivatewiassivaas lecuerendussabusstetauandisutssvostenuamventiae 9
S. Ct. R. 10 sescswscssecmascscascan essai ds Ia UR iat ORECAST RE RCE EET ZA a
Other
B. Ferguson, Plain Error Review and Reforming the Presumption of Prejudice,
AA N.M. L. Rev. 803 (2014) .0....cecceceseecesesseseceeeseeceeneceeeereeeessaeecserseeaeereeeeeeeeeeees 21
vl
IN THE
SUPREME COURT OF THE UNITED STATES
CORTEZ MAURICE CRUMBLE,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
Petitioner Cortez Crumble respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Eighth Circuit.
OPINION BELOW
The opinion of the Eighth Circuit Court of Appeals is reported as United States
v. Crumble, 965 F.3d 642 (8th Cir. 2020), and is reprinted in the Appendix to this
Petition. (App. 1-4).
JURISDICTION
The Eighth Circuit Court of Appeals issued its decision on July 13, 2020.
(App. 1). By order dated March 19, 2020, this Court extended the deadline for filing
of a petition for certiorari “to 150 days from the date of the lower court judgment,”
and hence this Petition is timely. This Court has jurisdiction to review the decision
of the court of appeals under 28 U.S.C. § 1254(1).
RELEVANT RULE & STATUTES
This petition involves the contours of plain-error review, controlled by the
Federal Rules of Criminal Procedure as follows—
Fed. R. Crim. P. 52
Harmless and Plain Error
xk RK
(b) Plain Error. A plain error that affects substantial rights may be considered even
though it was not brought to the court’s attention.
This petition also involves federal criminal statutes involving possession of
firearms by persons falling within status categories, including the following—
18 U.S.C. § 922
Unlawful Acts
(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;
K*K*K
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
Penalties
[(a)](2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), @, G), or (0) of
section 922 shall be fined as provided in this title, imprisoned not more than 10 years,
or both.
INTRODUCTION
This Petition asks the Court to decide the circumstances under which a circuit
court should correct trial errors derived from this Court’s intervening decision in
Rehaif v. United States, 189 S. Ct. 2191 (2019), and reviewed under the plain-error
standard of Fed. R. Crim. P. 52(b). In particular, the questions involve: (1) whether
such errors are prejudicial to the defendant under Prong Three of Rule 52(b) plainerror review; and (2) the proper scope of judicial inquiry to determine whether such
errors should be corrected under Rule 52(b) plain-error review. Should the Court
accept review of the questions presented, the resulting decision would resolve intercircuit conflicts, and also supply lower courts with much-needed guidance as to an
important and recurring topic of federal criminal law. This is why Petitioner seeks
this Court’s review.
STATEMENT OF THE CASE
tlhe Under 18 U.S.C. § 922(g), it is a criminal offense for any person fitting
under one of nine statutory status categories to “possess .. . any firearm or
ammunition.” One such status category encompasses any person “who has been
convicted in any court of [] a crime punishable by imprisonment for a term exceeding
one year.” § 922(g)(1). A “knowing[]” violation of this offense subjects a person to
criminal penalties, up to a 10-year term of imprisonment. 18 U.S.C. § 924(a)(2). This
particular combination of § 922(g) and § 924(a)(2) is an offense commonly known as
felon-in-possession.
Dn In the district court below, Petitioner was charged with a felon-in-
possession offense under § 922(g)(1) & § 924(a)(2). (App. 5-7). The charging document
3
alleged that Petitioner “knowingly possess[ed] ... ammunition” on a particular date.
(App. 5-7). It was alleged that Petitioner’s criminal history included convictions
fitting under the prohibited status category of § 922(g)(1). (App. 5-7). The indictment
did not claim the unlawful possession occurred while knowing his status fit within
the prohibited category. (App. 5-6).
Or The omission was not an oversight, but rather conformed with thenprevailing circuit law. United States v. Kind, 194 F.3d 900, 907 (8th Cir. 1999). By
extension, then-prevailing circuit law precluded a felon-in-possession defendant from
mounting a defense based upon circumstances under which the accused might be
mistaken or ignorant of his own prohibited status. United States v. Lomax, 87 F.3d
959, 962 (8th Cir. 1996).
A. The case proceeded to trial by jury. Under this Court’s decision in Old
Chief v. United States, 519 U.S. 172, 191-92 (1997), Petitioner stipulated that one or
more of his prior convictions fit the prohibited status category of § 922(g)(1). (App.
14). Though here again, in conformity with the above circuit rules, the stipulation did
not assert that he knew of his prohibited status at the time of the alleged unlawful
possession. (App. 14).
Bs Accordingly, the parties’ evidentiary presentations at trial contained
virtually no mention of the prohibited-status element of the felon-in-possession
offense, apart from the Old Chief stipulation. (App. 11-15, 24-25).
6. At the close of evidence, the district court instructed the jury as to the
essential elements of the charged offense. (App. 15). Here again—and in accordance
with then-prevailing circuit law above—the district court’s instructions did not
require a finding that Petitioner knew his prohibited status under § 922(g). (App. 15).
7. Given the longstanding circuit authority precluding a knowledge-ofstatus essential offense element or defense, Petitioner raised no objection to the
statement of offense as charged in the indictment, nor the district court’s instructions
to the jury concerning the essential elements of the offense. (App. 16). Nor did
Petitioner attempt to present a (then futile and legally precluded) ignorance-of-status
defense at trial. (App. 11-15).
8. The jury returned a guilty verdict, and the district court later imposed
a 63-month term or imprisonment. (App. 3, 15). Petitioner appealed to the Eighth
Circuit Court of Appeals. (App. 1-4 & 8-21).
9. While Petitioner’s appeal was pending, this Court issued its decision in
Rehaif v. United States, the core holding of which was—
[I]In a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the
Government must prove both that the defendant knew he possessed a
firearm and that he knew he belonged to the relevant category of persons
barred from possessing a firearm.
139 S. Ct. 2191, 2020 (2019) (emphasis added).
10. Accordingly, on review before the Eighth Circuit Court of Appeals,
Petitioner raised claims of error based upon this Court’s intervening Rehaif decision.
(App. 16-18). Specifically, that the errors in the indictment and instructions to jury
deprived Petitioner of “notice of the true nature of the charge leveled against him, the
permissible defenses to that charge, and the capacity to put on a complete defense.”
(App. 17). Because no objection was registered below due to then-extant circuit law,
Petitioner sought plain-error review under Fed. R. Crim. P. 52(b). (App. 16).
11. Under this Court’s decisions, Rule 52(b) plain-error review proceeds
under four prongs:
Prong One. There must be some legal error—i.e., a “deviation from a legal rule’—
which has not been intentionally relinquished.
Prong Two. The legal error must be clear or obvious, as opposed to one which is
subject to reasonable dispute.
Prong Three. The legal error must have affected the defendant’s “substantial rights.”
Prong Four. If all the foregoing prongs are triggered, a reviewing court will then
have discretion to correct the error, should it be deemed to impact the
“fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732-37 (1993) (internal punctuation and
citations omitted); accord Puckett v. United States, 556 U.S. 129, 135 (2009).
12. Under Prongs One and Two, the error in question need only be plain at
the time appellate review, rather than at the time of criminal proceedings in the
district court below. Henderson v. United States, 568 U.S. 266, 279 (2013). This Court
has deemed Prongs One and Two satisfied when an intervening Supreme Court
decision has altered those elements as of the time of appellate review. Johnson v.
United States, 520 U.S. 461, 467-68 (1997).
ik? Prong Three asks whether the error in question affected the defendant's
“substantial rights.” Olano, 507 U.S. at 734. In “most cases” this means the
defendant-appellant must show the error was “prejudicial,” i.e, shown to “have
affected the outcome of the district court proceedings.” Jd. However, this Court has
allowed for a “special category of forfeited errors that can be corrected regardless of
6
their effect on the outcome.” Jd. at 735. That is to say, a class of errors that are to be
“presumed prejudicial” even if the defendant “cannot make a specific showing of
prejudice.” Id.
14. Prong Four grants a reviewing court discretion to correct an
unpreserved error, so long as the foregoing three prongs have been satisfied. Olano,
507 U.S. at 735-37. This Court has said a reviewing court should exercise that
discretion when the error in question “seriously affects the fairness, integrity or
public reputation of judicial proceedings,” an inquiry that is independent of the
strength or weakness of the evidence presented at trial. Id. at 736-37.
15. In seeking correction of the Rehaif trial errors on plain-error review,
Petitioner pointed out the newly formulated knowledge-of-prohibited-status element
necessarily implies a defense to a § 922(g)(1) and § 924(a)(2) charge based upon
mistake or ignorance of prohibited status. See Lomax, 87 F.3d at 962. (App. 17). For
example, where the defendant reasonably believes that his civil rights have been
restored, thereby removing his prohibited status for purposes of the federal statutes
at issue. 18 U.S.C. § 921(a)(20)(B) & Minn. Stat. § 609.165 (applicable state law
involving deprivation of civil rights by means criminal conviction and restoration
thereof). Petitioner pointed out that this defense is now available after this Court’s
Rehaif decision, but was explicitly unavailable at the time of trial due to longstanding
circuit law. (App. 17-18). Hence, Petitioner did not contemplate any such trial
defense, much less attempt to present one. (App. 17-18).
16. In the context of Rehaif trial errors cited here—i.e., failure of notice,
availability of defense, and jury determination of essential element—the Eighth
7
Circuit Court of Appeals has said the appellant can meet the Prong Three
“substantial rights” test only upon an affirmative showing of a “reasonable
probability that, but for the error the outcome of the proceeding would have been
different.” United States v. Hollingshed, 940 F.3d 410, 416 (8th Cir. 2019). That is to
say, the Eighth Circuit does not classify a Rehaif trial errors at issue here as ones to
be “presumed prejudicial.” Olano, 507 U.S. at 735. Rather, to obtain relief under
Prong Three of plain-error review, the Eighth Circuit requires the appellant to make
a specific showing that he could have presented “a plausible ignorance defense.”
United States v. Caudle, 968 F.3d 916, 921-22 (8th Cir. 2020).
17. In Petitioner’s case, the Eighth Circuit declined to correct the Rehaif
trial errors based upon Prong Three of Rule 52(b) plain-error review. United States v.
Crumble, 965 F.3d 642, 644-45 (8th Cir. 2020) (App. 1-4). The court said that
Petitioner had the “burden to prove that his substantial rights were affected by the
Rehaif error.” Id. at 645. This, said the Eighth Circuit, obligated Petitioner to “show
a reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Jd. (internal punctuation omitted).
18. The Eighth Circuit held that Petitioner could not meet the above-posited
burden, using extra-trial-record information to conclude that Petitioner had
“previously [been] convicted for being a felon in possession of ammunition and served
60 months’ imprisonment.” Id. at 645. This last piece of information concerning prior
length-of-prison-stay was not presented at trial due to the Old Chief stipulation;
instead, the information is sourced from other portions of the record which were not
presented to the jury at trial, t.e., the sentencing record. (App. 3, 14, 26, 28).!
19. Nor, in the court’s view, did the result change with the observation that
Petitioner had been denied an ignorance-of-status defense that was not viable before
this Court’s Rehaif decision. According to the Eighth Circuit: “Merely identifying a
defense theory—a possibility—is not sufficient to show a reasonable probability of
success without any evidence that the defense theory would, in fact, apply in this
case.” Id. at 645.
20. The Highth Circuit thus held that a Rehaif trial error which failed to
give notice as to the essential elements of charged offense, deprived Petitioner of a
defense under longstanding circuit law, and resulted in a conviction without
instructing on the essential elements of the offense, was not the type of error that
equates with presumed prejudice. (App. 3). Nor did the Eighth Circuit reach the
question under Prong Four of plain-error review, i.e., discretionary relief when the
error in question “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at 736-37. (App. 3). This is at odds with
approaches followed by other circuit courts, and thus Petitioner seeks this Court’s
review for the reasons outlined below.
At trial, the district court did admit a copy of Petitioner’s state guilty-plea papers to the state law offense under Fed.
R. Evid. 404(b). (App. 28). However, this is a pre-sentencing document that does not state the ultimate penalty
imposed. And in any event says nothing about post-sentencing restoration of civil rights. See 18 U.S.C.
§ 921(a)(20)(B).
9
REASONS FOR GRANTING THE PETITION
Petitioner respectfully requests the Court accept review of the questions
presented, because: (A) the questions have generated conflicting authority among the
lower circuit courts; (B) the questions are important, with a weighty impact upon the
administration of criminal justice in federal courts; and (C) this case presents an apt
vehicle by which to resolve the questions.
A. The questions encapsulate conflicts among the lower circuit courts.
This petition raises two questions for this Court’s review—
(1).
When evaluating Rehaif-derived trial errors under Rule 52(b) plain-
error review, should prejudice under the “substantial rights” prong be
presumed?
(2).
When evaluating Rehaif-derived trial errors under Rule 52(b) plain-
error review, is it permissible for an appellate court to consider
information gleaned from outside the trial record?
As explained below, both questions are the subject of inter-circuit splits of authority.
1. Prejudice under Prong Three of Rule 52(b) plain-error review
The first question concerns Prong Three of the Rule 52(b) plain-error inquiry,
i.e., whether the Rehaif trial errors in question were “prejudicial” to the defendant.
Olano, 507 U.S. at 734. This Court has held this prong may be satisfied in two ways:
(i) with a “specific showing” that the errors “affected the outcome of the district court
proceedings’; or (11) via classification under a “special category of forfeited errors that
can be corrected regardless of their effect on the outcome,” i.e., errors that are to be
“presumed prejudicial.” Id. at 734-35.
10
Here, the Rehaif trial errors involve omission of an essential element from the
charging document and final instructions to the jury, as well as concomitant denial
of a trial defense. In applying Rule 52(b) plain-error review to similar trial situations
involving omission or misstatement of an essential offense element in the indictment
or jury instructions, this Court has declined to rule whether such errors result in
presumed “prejudice” within the meaning of Rule 52(b) Prong Three. United States v.
Cotton, 535 U.S. 625, 632-33 (2002) & Johnson v. United States, 520 U.S. 461, 469-70
(1997). Instead, this Court has proceeded to discretionary Prong Four of plain-error
review, and declined to grant discretionary relief where the trial record revealed
evidence on the omitted element that was “overwhelming” and “essentially
uncontroverted.” Id.
But in Petitioner’s case—and in like cases involving Rehaif-derived trial errors
concerning whether the defendant acted “knowing” his own prohibited status under
§ 922(¢)—there was no evidence of the omitted element presented at trial, i.e., no
evidence that Petitioner knew his prohibited status at the time. This is because thenextant circuit law deemed such evidence wholly irrelevant to the charged offense. The
question arises, then, whether such Rehaif-derived trial errors require a specific
showing of prejudice under Prong Three of Rule 52(b) plain-error review. Olano, 507
USS. at 734-35. Or alternatively, whether prejudice must be presumed. Id. On this
question, the lower circuit courts have split into three camps: (a) those that require a
specific showing of prejudice; (b) those that presume prejudice; and (c) those that
avoid the question by assuming prejudice and proceeding to Prong Four of plain-error
review. Each competing tack is discussed below.
11
(a). Specific showing of prejudice
In considering Rehaif-derived trial errors under Prong Three of Rule 52(b)
plain-error review, the Eighth Circuit Court of Appeals requires the defendantappellant to make a specific showing of prejudice. United States v. Hollingshed, 940
F.3d 410, 416 (8th Cir. 2019). In so holding, the Eighth Circuit does not explicate how
an appellant could make the requisite showing with the trial record alone, given that
the salient feature of Rehaif trial errors is lines of evidence and defense
argumentation that were never pursued, owing to then-extant circuit law. See id.
Instead, Eighth Circuit precedent holds that an appellant must make an
appellate proffer—generally from outside the trial record—which could establish a
“plausible ignorance defense” with respect to the prohibited-status element. United
State v. Caudle, 968 F.3d 916, 922 (8th Cir. 2020). The Eighth Circuit states that it
will be an “uphill battle” to make the showing where the defendant had “served more
than year in prison on a single count of conviction.” Id.
In the case at hand, Petitioner had been convicted of a prior state offense and
had served more than one year in prison. (App. 3). But that information was not in
the trial record, nor presented to the jury. (App. 2-3). Rather, the information was
gleaned from extra-trial sources like the sentencing record. (App. 3, 14, 26, 28). And
in line with the above concepts, the Eighth Circuit found this extra-trial-record
information dispositive in denying relief under Prong Three of plain-error review.
Crumble, 965 F.3d at 645.
Petitioner pointed out a major flaw in such singular reliance upon the extra-
trial record of a defendant having previously served over one year in prison on a prior
2
count of conviction. Jd. Specifically, that a defendant with such a record may yet be
able to defend on a post-Rehaif theory that he reasonably believed his civil rights had
been restored by the state of conviction, and therefore believed that he no longer held
the prohibited status. See Logan v. United States, 552 U.S. 28, 27-28 (2007)
(discussing legislative history and purpose of § 921(a)(20)(B)). Such a defense would
be viable regardless of the duration of imprisonment served on a prior count of
conviction, pointed out Petitioner. (App. 17).
The Eighth Circuit rejected that point, holding that the critique failed to reach
the “reasonable probability” threshold: “Merely identifying a defense theory—a
possibility—is not sufficient to show a reasonable probability of success without any
evidence that the defense theory would, in fact, apply in this case.” Crumble, 965 F.3d
at 645.
Hence, in order for a felon-in-possession defendant to meet Prong Three of
plain-error review, the Eighth Circuit permits looking beyond the trial record to
determine how long the defendant served in prison for a prior conviction. Id. And if
the defendant believes he would have had a particularized defense at trial under the
Rehaif rule, the Eighth Circuit requires a defendant to make a proffer which may be
(and most likely would be) outside the record entirely, to show “the defense theory
would, in fact, apply in thfe] case” at hand. Id.
The Eighth Circuit does not stand alone in the adopting the above methodology
or some version of it, but rather joins a cohort of like-minded circuit courts including:
the Fifth Circuit, United States v. Huntsberry, 956 F.3d 270, 283-86 (5th Cir. 2020);
the Sixth Circuit, United States v. Ward, 957 F.3d 691, 695 (6th Cir. 2020); the Ninth
13
Circuit, United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019); and the
Eleventh Circuit, Untied States v. Reed, 941 F.3d 1018, 1021-22 (11th Cir. 2019).
Other circuit courts disagree with the approach, however, as described next.
(b). Presumption of prejudice
The Fourth Circuit Court of Appeals has taken a different path in evaluating
Rehaif-derived trial errors under Rule 52(b) plain-error review. United States v.
Medley, 972 F.3d 399, 406-16 (4th Cir. 2020), pet. for reh’g en banc granted, 828 Fed.
Appx. 928 (Nov. 12, 2020).
Construing this Court’s precedents described earlier, the Fourth Circuit holds
that in such a scenario the defendant can be said to suffer no prejudice only if “the
omitted element was uncontested and supported by overwhelming evidence.” Medley,
972 F.3d at 413. But in the Rehaif trial error scenario, the only reason the omitted
element was “uncontested” was that longstanding circuit authority precluding the
defense entirely, such that a defendant would not expend valuable time and resources
to present a futile (and likely precluded) line of defense. Id. at 413-14. And an Old
Chief trial stipulation of actual prohibited status says little-to-nothing about crucial
question of the defendant’s knowledge of prohibited status. Jd. at 414-15.
Hence, in the view of the Fourth Circuit, the constellation of Rehaif trial
errors—failure to provide notice of charges, to prove and instruct on essential
element, to present evidence on that element, and deprivation of a defense—means
the “substantial rights” prong of plain-error review is satisfied. Id. at 415-16. This
amounts to a holding that Rehaif-derived trial errors must be presumed prejudicial
under Prong Three of Rule 52(b) plain-error review.
14
The Fourth Circuit has lately granted en banc rehearing with respect to its
Medley decision. 828 Fed. Appx. 923 (Nov. 12, 2020) (Nov. 12, 2020). At time of
writing, it is unknown whether the full complement of Fourth Circuit judges will
affirm the reasoning the Medley panel decision, or modify it in some significant way.
Regardless, there will remain an inter-circuit split as demonstrated by the final
cohort of circuit courts, below.
(c). Assumption of prejudice
Some circuit courts have recognized the aforementioned problems associated
with analyzing Rehaif trial errors under the Prong Three of Rule 52(b) plain-error
review. But following this Court’s example in Cotton and Johnson, supra, have chosen
to avoid the question, instead proceeding directly to the question of discretionary
relief under Prong Four.
The Second Circuit, to take an example, has said that an Old Chief trial
stipulation and failure to contest scienter might, in theory, be suggestive of nonprejudicial error under Prong Three. United States v. Miller, 954 F.3d 551, 559 (2d
Cir. 2020). But the circuit court balanced that consideration with “the paucity of
factual development at trial pertaining to a question that was not discerned before
Rehatf was decided.” Id. Hence, the Second Circuit has “decline[d] to decide whether
a properly-instructed jury would have found [the defendant] was aware of his
membership in § 922(g)(1)’s class.” Id. And instead proceeded to the Prong Four
question of discretionary relief involving the “fairness, integrity or public reputation
of judicial proceedings” under Prong Four. Jd.
15
The Seventh Circuit has considered the identical situation. United States v.
Maez, 960 F.3d 949 (7th Cir. 2020). And having surveyed a number of approaches
taken by the circuit courts, concluded the Second Circuit's avoidance of the
“substantial rights” and “prejudice” prong was most sound. Id. at 959-63. Accordingly,
like the Second Circuit, the Seventh Circuit assumes prejudice under Prong Three of
plain-error review, and proceeds to Prong Four. Id. at 961.
All of this evinces a broad split amongst the circuit courts as to the question of
whether, in the context of Rehaif trial errors, prejudice must be specifically shown
under Prong Three of plain-error review. Or whether such prejudice should be
presumed. Beyond that, there remains the question of the mode of inquiry under Rule
52(b) plain error review, which is the subject of yet another circuit split described
next.
2. Scope of judicial inquiry under Rule 52(b) plain-error review
The second question presented involves the scope of judicial inquiry when
confronted with Rehaif-derived trial errors on Rule 52(b) plain-error review. Circuit
courts have disagreed as to what information may be considered, and at what stage
of plain-error review to do so. See, e.g., United States v. Maez, 960 F.3d 949, 960-61
(7th Cir. 2020) (recognizing inter-circuit split of authority). The inter-circuit split
again falls into three camps: (a) those that permit judicial inquiry outside the trial
record at Prong Three of Rule 52(b) plain-error review; (b) those that permit such
extra-trial-record judicial inquiry at Prong Four of plain-error review; and (c) one that
forbids such judicial inquiry at any phase of plain-error review.
16
(a). Outside trial record at Prong Three
As stated earlier, there exists a cohort of circuit courts that require a specific
showing of prejudice under Prong Three of Rule 52(b) plain-error review in the
context of Rehaif-derived trial errors. But these circuit courts implicitly recognize
that a Rehaif trial error is not marked by the presence of some salient event which
may have swayed the jury in a different direction. But rather the absence of
instructions to the jury and or defense presentations which may have done so.
One group of circuit courts resolves this problem at Prong Three of plain-error
review by reaching outside the trial record. Most commonly, by looking at the
sentencing record to determine whether the prior conviction which placed the
defendant under a prohibited status category of § 922(g)(1), actually resulted in the
defendant serving more than one year imprisonment. The rationale being that if a
defendant had actually served more than one year of imprisonment, he would have
been hard-pressed to claim ignorance of having been convicted of a “crime punishable
by imprisonment for a term exceeding one year.” § 922(g)(1).
The reasoning is not wholly satisfactory for reasons articulated by circuit
courts that employ competing approaches, e.g., any given defendant may well have
had individualized reasons to believe that he did not fit under the prohibited status,
but such reasons were never explored or presented at trial due to then-extant circuit
law precluding such a defense. And in the case at hand, Petitioner offered an example:
mistake about whether a post-sentencing restoration of civil rights removed the
prohibited status under federal law.
17
At all events, the line of reasoning adopting by this first group requires a
reviewing court to look outside the trial record to determine whether the Petitioner
actually did serve more than one year on the count of conviction. At least five circuit
courts permit this extra-trial-record judicial inquiry at Prong Three of Rule 52(b)
plain-error review: the Fifth Circuit, United States v. Huntsberry, 956 F.3d 270, 283-
86 (5th Cir. 2020);the Sixth Circuit, United States v. Ward, 957 F.3d 691, 695 (6th
Cir. 2020); the Eighth Circuit, United States v. Hollingshed, 940 F.3d 410, 416 (8th
Cir. 2019); the Ninth Circuit, United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir.
2019); and the Eleventh Circuit, United States v. Reed, 941 F.3d 1018, 1021-22 (11th
Cir. 2019).
However, a number of other circuit courts disagree with this approach, as
explained next.
(b). Outside trial record at Prong Four
Departing from these decisions are at least two circuit courts, which recognize
the above-stated pitfalls with such heavy reliance upon extra-trial-record information
about the duration of a prior prison sentence at Prong Three of plain-error review.
For example, in Rehaif trial error cases, the Second Circuit has observed “the
substantial-rights analysis ... is difficult ... given the paucity of factual development
at trial pertaining to a question that was not discerned before Rehaif was decided.”
United States v. Miller, 954 F.3d 551, 559 (2d Cir. 2020). Hence, contrary to the first
cohort of circuit courts above, the Second Circuit “decline[s] to decide whether a
properly-instructed jury would have found that [the defendant] was aware of his
membership in § 922(g)(1)’s class.” Id.
18
Employing identical reasoning, the Seventh Circuit holds that “the third prong
of the plain-error test look[s] to the trial record when the defendant has exercised his
right to trial.” United States v. Maez, 960 F.3d 949, 961 (7th Cir. 2020). Anything
outside that trial record is disregarded at that phase of plain-error review.
That being said, both the Second Circuit and Seventh Circuit permit judicial
inquiry outside the trial record when evaluating Prong Four of plain-error review,
i.e, Whether to grant discretionary relief when the effort seriously affects the
“fairness, integrity or public reputation of judicial proceedings.” Miller, 954 F.3d at
559-60 & Maez, 960 F.3d at 961-63. Even then, however, these circuits have
proceeded carefully, limiting the inquiry to reliable information in the record, e.g.,
[W]e confine our [Prong Four] inquiry to the trial records and a narrow
category of highly reliable information outside the trial records: the
defendants’ prior offenses and sentences served in prison, as reflected in
undisputed portions of their [presentence reports].
Maez, 960 F.3d at 9638.
(c). Within trial record at Prong Three and Prong Four
Last, the the Fourth Circuit declines to engage in any extra-trial-record
judicial inquiry at Prong Three or Prong Four of plain-error review. United States v.
Medley, 972 F.3d 399, 406-19 (4th Cir. 2020), pet. for reh’g en banc granted, 828 Fed.
Appx. 923 (Nov. 12, 2020).
The Fourth Circuit declines to engage in the extra-trial-record inquiry at Prong
Three because, in its view, the exercise is speculative and counterfactual:
Because it is Inappropriate to speculate how [the defendant-appellant]
might have defended the element in the counterfactual scenario where
he was presented with the correct charge against him, we find that the
instructional error in this case violated his substantial rights.
19
972 F.3d at 414.
Nor does the Fourth Circuit countenance the technique at Prong Four of plainerror review, both because the exercise is speculative as noted above, and because it
implies judicial usurpation of functions that rightly belong to a jury:
Ignoring the errors above because it may appear to us that the
Government could have proven the additional element had they been
given a chance to do so at trial and before the grand jury would
ultimately reduce itself to the idea that “the judges know best.” Although
convenient, we cannot succumb to the belief that this is true. As judges,
we must refrain from engaging in counterfactual inquiries that force us
to stray too far beyond our Article III powers. Affirming [the] conviction
would require us to usurp the role of both the grand and petit juries and
engage 1n inappropriate judicial factfinding.
Id. at 418 Gnternal citations and punctuation omitted).
As already noted, the Fourth Circuit has granted rehearing as to the above
decision, and at time of writing it is unknown whether the above reasoning will be
affirmed or amended. 828 Fed. Appx. 923 (Nov. 12, 2020). Regardless, there will
remain an inter-circuit split concerning which phase of plain-error review to consider
extra-trial-record information, and to what extent.
Standing alone, the above inter-circuit splits justify this Court’s review of the
questions presented. S. Ct. R. 10(a). But beyond this, the questions involve principles
of law that are both important and recurring in the context of federal criminal law,
as described in the final subsections below.
20
B. The questions implicate important principles of law, carrying a broad
impact upon the administration of criminal justice.
The questions presented in this petition are important ones, frequently
encountered by federal courts of appeal. This is aptly demonstrated by the sheer
volume of cases already generated, just over a year after this Court issued its Rehaif
decision. This is to say nothing of the diversity of analytical approaches to both
questions, above discussed.
Beyond this, the questions presented are not limited in application to Rehaifderived trial errors. Consider, for example, unpreserved claims of constructive
amendment to a prosecution theory-of-offense as articulated in the charging
document. Some circuit courts hold that such errors are to be presumed prejudicial
under Prong Three of plain-error review, e.g., United States v. Syme, 276 F.3d 131,
154 (3d Cir. 2002), while others disagree and hold that specific showing of prejudice
is necessary to meet the test, e.g., United States v. Brandao, 539 F.3d 44, 60-63 (1st
Cir. 2008). A decision by this Court as to the questions presented would assist the
circuit courts in resolving such inter-circuit splits of authority. And in avoiding future
doctrinal divides.
The reality is, circuit courts “have struggled to discern when to lift a
defendant’s burden of making a specific showing of prejudice.” B. Ferguson, Plain
Error Review and Reforming the Presumption of Prejudice, 44 N.M. L. Rev. 303, 326
(2014); accord, e.g., Molina-Martinez v. United States, 136 S. Ct. 13838, 1349 (2016)
And the circuit courts have found it equally nettlesome to determine which portions
21
of the district court record to consult for purposes of making the requisite showing,
when called for. See, e.g., supra REASONS § A.2.
Were this Court to accept review and issue a decision with respect to the
questions presented, the applicable legal principles governing Rule 52(b) plain-error
review would be clarified. Lower courts would trend toward doctrinal uniformity, not
only with respect to Rehaif-derived trial errors but with respect to the vast array of
errors evaluated under plain-error review. In sum, review of the questions presented
would resolve inter-circuit splits and clarify the law with respect to an important
arena of federal law. See S. Ct. R. 10(a).
C. The decision below offers an apt vehicle by which to consider the
questions presented.
In the decision below, the Eighth Circuit recognized that Petitioner did not
have notice that the “knowing” mens rea aspect of the charged felon-in-possession
offense applied to the prohibited status element. Crumble, 965 F.3d at 644-45.
Rather, then-extant circuit law said the opposite, Kind, 194 F.3d at 907, and
precluded an ignorance of status defense, Lomax, 87 F.3d at 962.
Nonetheless, the decision below combed the extra-trial record to find that
Petitioner had previously served a term-of-imprisonment exceeding one year on a
count of conviction, and from there concluded that he could not have put forward an
ignorance-of-status defense under § 922(g)(1) and therefore could not demonstrate
prejudice under Prong Three of plain-error review. Crumble, 965 F.3d at 645.
Petitioner protested that even if this reasoning were sound, there remains a
potential defense relating to § 921(a)(20)(B), if Petitioner had mistakenly believed
22
that his civil rights had been restored by operation of state law, Minn. Stat. § 609.165,
thereby removing him from the prohibited status of § 922(g)(1). But the Eighth
Circuit rejected this point as well, holding that Petitioner would need to offer
“evidence that the defense theory would, in fact, apply in this case.” Crumble, 965
F.3d at 645. The Eighth Circuit does not specify where the requisite “evidence” might
be drawn from, but certainly outside the trial record. And perhaps outside the district
court record entirely, since the matter was not presented in the district court due to
longstanding circuit law which precluded such a defense.
Hence, the decision below presents an apt vehicle by which to decide the
questions presented. The decision illustrates the situation a defendant faces in
making a specific showing of prejudice in the Rehaif trial error context. And the need
to draw information from outside the trial record, and perhaps the district court
record entirely. Petitioner cannot predict how the Court would rule on these matters
should it accept review of the questions presented; but certainly the questions are
worthy of this Court’s consideration in the interest of resolving inter-circuit splits of
authority and clarifying the law of Rule 52(b) plain-error review going forward.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.