Petition for Writ of Certiorari — Shane Arnold, Petitioner v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

No. ____________

OCTOBER TERM, 2020

_________________________________

SHANE ARNOLD,

Petitioner,

- vs UNITED STATES OF AMERICA,

Respondent.

_________________________________

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

GARY PAUL BURCHAM

BURCHAM & ZUGMAN

402 West Broadway, Suite 1130

San Diego, CA 92101

Telephone: (619) 699-5930

Attorney for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether a defendant satisfies the final two prongs of plain

error review for a Rehaif v. United States, __ U.S. __, 139

S. Ct. 2191 (2019), trial error if he demonstrates that, but

for the district court’s omission of the knowledge-of-status

element at trial, he would have introduced evidence

bearing upon this point in support of a viable knowledgeof-status defense?

- Prefix -

TABLE OF CONTENTS

Authorities Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Question Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prefix

Petition for Writ of Certiorari. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction and Citation of Opinion Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Constitutional Provisions at Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Rule at Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of Facts and Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Word Count Certification

Appendix:

Appendix “A” (Ninth Circuit Court of Appeals

Memorandum)

Appendix “B” (Ninth Circuit Court of Appeals order denying

petition for rehearing and suggestion for rehearing en banc)

i

TABLE OF AUTHORITIES

CASES

Chambers v. Miss., 410 U.S. 284 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-11

In re Oliver, 333 U.S. 257 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-11

Montana v. Egelhoff, 518 U.S. 37 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-11

Neder v. United States, 527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

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

United States v. Gary, 963 F.3d 420 (4th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 10

United States v. Johnson, 963 F.3d 847 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 9

United States v. Maez, 960 F.3d 949 (7th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Stanford, 823 F.3d 814 (5th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 9

United States v. Welch, 951 F.3d 901 (8th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 9

FEDERAL STATUTES

18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,8-9,11

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATE STATUTES

Cal. Penal Code § 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

Cal Penal Code § 273.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5,8,10

ii

No. ____________

OCTOBER TERM, 2020,

_________________________________

SHANE ARNOLD,

Petitioner,

- vs UNITED STATES OF AMERICA,

Respondent

_________________________________

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth Circuit entered on

November 25, 2020.

JURISDICTION AND CITATION OF OPINION BELOW

On November 25, 2020, the Ninth Circuit affirmed Petitioner’s

conviction in an unpublished Memorandum opinion, attached as Exhibit “A” to this

petition. The Ninth Circuit denied Petitioner’s petition for rehearing, and suggestion

for rehearing en banc, on January 11, 2021. This Court has jurisdiction to review the

Ninth Circuit's decision pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS AT ISSUE

Fifth Amendment to the U.S. Constitution:

No person shall . . . be deprived of life, liberty, or

property, without due process of law.

Sixth Amendment to the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury . . .

and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his

defense.

FEDERAL RULE AT ISSUE

Federal Rule of Criminal Procedure 52:

(a) Harmless Error. Any error, defect, irregularity, or

variance that does not affect substantial rights must be

disregarded.

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(b) Plain Error. A plain error that affects substantial rights

may be considered even though it was not brought to the

court’s attention.

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INTRODUCTION

Petitioner asks the Court to grant review of the instant case in order to

decide the proper prejudice analysis for a Rehaif v. United States, __ U.S. __, 139 S.

Ct. 2191 (2019), plain trial error. The Ninth Circuit panel looked to the record from

Petitioner’s bench trial to determine whether he had been prejudiced by the failure of

the district court to require the government to prove Petitioner’s knowledge-of-status

in connection with his 18 U.S.C. § 922(g) count. The Ninth Circuit found no effect

on Petitioner’s substantial rights given the state court minutes which the government

had placed into the record which showed that Petitioner had been convicted of a

misdemeanor domestic violence conviction, pursuant to Cal. Penal Code § 273.5. In

this pre-Rehaif trial, however, Petitioner had been completely denied his right to

present a defense as to this particular element due to the district court’s error, and he

would have introduced evidence bearing upon this element as part of a viable

knowledge-of-status defense had he been allowed. Petitioner asks the Court to

review this case to determine whether the Ninth Circuit’s Rehaif prejudice analysis

under these circumstances is violative of the Fifth and Sixth Amendments.

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STATEMENT OF FACTS AND CASE

In 2017, Petitioner was charged with, among other counts, being a

prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g). As

to the section 922(g) count, the indictment alleged that Petitioner was barred from

possessing a firearm because he had been convicted of a “misdemeanor crime of

domestic violence, namely, Infliction of Corporal Injury on a Spouse or Co-Habitant,

in violation of California Penal Code Section 273.5, in the Superior Court of the State

of California, County of Los Angeles, case number 6IW0886, on or about September

30, 1996.”

In a pre-Rehaif, bench trial, in order to prove up the existence of the prior

misdemeanor domestic violence conviction, the government admitted as an exhibit

the criminal minutes from Petitioner’s 1996 case. This document showed the fact of

conviction, as well as the fact that Petitioner had been ordered to complete a domestic

violence class as part of the sentence. Given the state of the law at the time or trial,

Petitioner presented no defense to the knowledge-of-status element of the charge.

The district court convicted Petitioner of the section 922(g) charge, and sentenced

him to 10 years in custody, to run concurrently to a sentence of 135 months on counts

one and two of the indictment.

On direct appeal, Petitioner raised multiple claims related to the Rehaif

5

error, including that reversal was required because the government introduced

insufficient evidence to prove Petitioner’s knowledge of this status as a prohibited

person. The Ninth Circuit construed Petitioner’s claim as an argument that the

district court applied the wrong legal standard in assessing his guilt by omitting the

knowledge-of-status element required by Rehaif, and denied relief. [Mem. at 5]. The

panel found plain error, but declined to find that Petitioner had been prejudiced

because the trial record showed that Petitioner had been convicted of a Cal. Penal

Code § 273.5(a) domestic violence misdemeanor conviction, that as part of his

conviction he had enrolled in a 52-week domestic violence program, and this

evidence established beyond a reasonable doubt that he had the required knowledge

under Rehaif. [Ex. “A” at 6]. The Ninth Circuit denied Petitioner’s petition for

rehearing, and suggestion for rehearing en banc, without further comment. [Ex. “B”].

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ARGUMENT

THE COURT SHOULD REVIEW THIS CASE TO CORRECT THE NINTH

CIRCUIT’S UNCONSTITUTIONAL REHAIF v. UNITED STATES, 139 S.

Ct. 2191 (2019), PLAIN ERROR PREJUDICE DETERMINATION

“A person’s right to reasonable notice of a charge against him, and an

opportunity to be heard in his defense -- a right to his day in court -- are basic in our

system of jurisprudence; and these rights include, as a minimum, a right to examine

the witnesses against him, to offer testimony, and to be represented by counsel.” In

re Oliver, 333 U.S. 257, 273 (1948). “The right of an accused in a criminal trial to

due process is, in essence, the right to a fair opportunity to defend against the State’s

accusations.” Chambers v. Miss., 410 U.S. 284, 294 (1973). “Due process demands

that a criminal defendant be afforded a fair opportunity to defend against the State’s

accusations.” Montana v. Egelhoff, 518 U.S. 37, 63 (1996).

“Where the defendant may introduce evidence to negate a subjective

mental-state element, the prosecution must work to overcome whatever doubts the

defense has raised about the existence of the required mental state.” Egelhoff, 518

U.S. at 65. “On the other hand, if the defendant may not introduce evidence that

might create doubt in the factfinder’s mind as to whether that element was met, the

prosecution will find its job so much the easier.” Id. “If a jury may not consider the

defendant's evidence of his mental state, the jury may impute to the defendant the

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culpability of a mental state he did not possess.” Id.

At the time of Petitioner’s trial, the 18 U.S.C. § 922(g) status

requirement mandated that the government demonstrate only that the defendant had

been convicted of a disqualifying offense at the time he possessed a firearm. In the

instant case, that was a California misdemeanor conviction under California Penal

Code § 273.5 which Petitioner suffered in 1996. At trial, the government introduced

the criminal minutes from that case to show the fact of conviction, and Petitioner

presented no defense to this knowledge-of-status element because the state of the law

at that time precluded such a defense.

The Court’s decision in Rehaif demonstrated that the trial court

committed error in its failure to require the government to prove that Petitioner knew

he had been convicted of a misdemeanor domestic violence crime at the time of this

offense. See Rehaif, 139 S. Ct. at 2200 (concluding that section 922(g) requires the

government to “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.”). The Ninth Circuit rejected Petitioner’s claim that this plain error required

reversal based upon its finding that the evidence from trial proved “beyond a

reasonable doubt that [Petitioner] had the requisite knowledge under Rehaif for a

conviction under 18 U.S.C. § 922(g)(9). [Ex. “A” at 6].

8

The Ninth Circuit’s plain error analysis in this case violated the Fifth and

Sixth Amendments because Petitioner had been completely foreclosed from

defending the knowledge-of-status element at trial, and had he been allowed to

contest this element, he would have introduced evidence in support of a viable

defense to this charge. While “cases involving a claim that the defendant was denied

the right to present an adequate defense typically involve the court’s excluding

certain testimony or evidence,” United States v. Stanford, 823 F.3d 814, 836 (5th Cir.

2016), here Petitioner was completely foreclosed from defending this element of the

charge because of the state of the law at that time. But unlike other cases where

defendants charged with felon-in-possession under section 922(g) had no viable

defense to the knowledge-of-status element available to them due to the nature of

their criminal histories, see, e.g., United States v. Johnson, 963 F.3d 847, 853-54 (9th

Cir. 2020) (defendant had three prior felonies, each for which he served a state prison

sentence); United States v. Benamor, 937 F.3d 1182, 1188-89 (9th Cir. 2019)

(defendant had seven felonies with multiple state prison commitments, and even a

prior felon-in-possession conviction), United States v. Maez, 960 F.3d 949, 965-66

(7th Cir. 2020) (no prejudice from Rehaif error given multiple prior felony

convictions); United States v. Welch, 951 F.3d 901, 907 (8th Cir. 2020) (defendant

could not show his substantial rights were affected because he had previously

9

“received and served several prison sentences longer than one year for felony

convictions”), Petitioner did have a viable defense to this requirement given what

occurred in his prior state case.

Petitioner had been charged in 1996 with two counts - Cal. Penal Code

§ 273.5 (misdemeanor corporal injury of a spouse, cohabitant, or fellow parent), and

Cal. Penal Code § 242 (misdemeanor simple battery). Petitioner ultimately pled to

the section 273.5 misdemeanor charge, but did so in the form of a no contest plea.

The trial court imposed a suspended sentence of one year in jail, and three years of

probation. Unlike the situation with a felony conviction where courts have found that

“[f]elony status is simply not the kind of thing that one forgets,” United States v.

Gary, 963 F.3d 420, 423 (4th Cir. 2020) (Wilkinson, J., concurring), here Petitioner

was convicted only of a misdemeanor, and through a nolo contendre plea to one of

two charged counts.

Given this record, Petitioner maintained the viable defense that due to

the nature of the charges and the manner of disposition of his case, he was unaware

that he had been convicted of a misdemeanor domestic violence offense. The minutes

do not confirm anything other than the conviction itself, and the fact that a nondomestic violence misdemeanor also had been charged in the case supports the claim

that Petitioner was unaware that he had been convicted of this precise offense. As to

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the other fact relied upon by the Ninth Circuit panel to find a lack of prejudice – that

Petitioner also had enrolled in a domestic violence counseling program – this also

was not dispositive as to his knowledge-of-status, as such a program could have been

imposed in connection with the original section 242 misdemeanor battery charge.

Even where a trial court erroneously omits an element from a criminal

charge, harmless error review generally is available. See Neder v. United States, 527

U.S. 1, 18-19 (1999) (concluding that the omission of an element is an error that is

subject to harmless-error analysis). The Court affirmed in that case due to an absence

of prejudice, but noted that, as to the omitted materiality element, “Petitioner does not

suggest that he would introduce any evidence bearing upon the issue of materiality

if so allowed.” Id. at 14. As set forth above, this case presents a very different

situation, as Petitioner has asserted that he would have introduced evidence on the

knowledge-of-status issue had the district court properly construed section 922(g).

In sum, if the rights the Court has discussed in cases such as In re Oliver

and Egelhoff are to be given sufficient meaning, the Ninth Circuit’s prejudice

approach in this case must be corrected. A defendant hardly is given a “fair

opportunity to defend against the State’s accusations,” Chambers, 410 U.S. at 294,

when he is improperly precluded from contesting an important mens rea component

of the charge against him at trial, but then the error is reviewed by relying on the

11

corresponding incomplete record to determine prejudice. Because Petitioner was

completely barred from presenting a defense on the knowledge-of-status element, and

he would have introduced evidence bearing on this status in support of a viable

defense requirement had the district court not erred, the Ninth Circuit’s plain error

prejudice analysis violated the Fifth and Sixth Amendments. Petitioner asks this

Court to review this case in order to correct the Ninth Circuit’s unconstitutional

application of Rehaif.

CONCLUSION

For the above reasons, Petitioner respectfully requests that the Court

grant the instant petition to review the decision of the Ninth Circuit Court of Appeals.

Respectfully submitted,

Dated: March 16, 2021

/s/ Gary P. Burcham

GARY PAUL BURCHAM

BURCHAM & ZUGMAN

402 West Broadway, Suite 1130

San Diego, CA 92101

Telephone: (619) 699-5930

Attorney for Petitioner

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