Opposition Brief — Kevin Brown, Petitioner v. United States
Supreme Court briefSep 8, 2021
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No. 21-5060
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
KEVIN BROWN, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
BRIAN H. FLETCHER
Acting Solicitor General
Counsel of Record
KENNETH A. POLITE, JR.
Assistant Attorney General
JOSHUA K. HANDELL
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether the court of appeals correctly determined that, in a
prosecution for possession of a firearm following a conviction for
a
18
“misdemeanor
U.S.C.
crime
of
domestic
violence,”
922(g)(9)
and
924(a)(2),
the
in
trial
violation
of
evidence
was
sufficient to establish that petitioner knew of his status as a
person who had been convicted of such an offense.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 21-5060
KEVIN BROWN, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A6) is not
published in the Federal Reporter but is reprinted at 822 Fed.
Appx. 878.
JURISDICTION
The judgment of the court of appeals was entered on July 21,
2020.
A petition for rehearing en banc was denied on February 3,
2021 (Pet. App. B1).
On March 19, 2020, this Court extended the
time within which to file any petition for a writ of certiorari
due on or after that date to 150 days from the date of the lowercourt
judgment,
order
denying
discretionary
review,
or
order
2
denying a timely petition for rehearing.
The petition for a writ
of certiorari was filed on July 2, 2021.
The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a bench trial in the United States District Court
for the Middle District of Florida, petitioner was convicted on
one count of possessing a firearm following a conviction for a
misdemeanor crime of domestic violence, in violation of 18 U.S.C.
922(g)(9) and 924(a)(2).
Judgment 1.
two years of probation.
affirmed.
1.
Petitioner was sentenced to
Judgment 2.
The court of appeals
Pet. App. A1-A6.
On March 26, 2015, Daytona Beach police met with a
confidential informant to plan a controlled purchase of two grams
of
methylmethcathinone
Ecstasy) from petitioner.
(a
psychoactive
narcotic
similar
to
Presentence Investigation Report (PSR)
¶ 7.
The informant made contact with petitioner, who instructed
the
informant
transaction.
to
come
PSR ¶ 8.
to
petitioner’s
residence
for
the
After the informant arrived, petitioner
brought the informant into his kitchen, where petitioner retrieved
the drug from a plastic bag, weighed out two grams, and accepted
$60 as payment.
Ibid.
The informant then left to meet with
police, who conducted a field test on the substance and confirmed
the presence of methylmethcathinone.
PSR ¶ 9.
3
On May 21, 2015, the informant conducted a second controlled
purchase of two grams of methylmethcathinone from petitioner.
¶ 11.
PSR
The second transaction proceeded in much the same manner as
the first, except that petitioner charged the informant only $55
for the second sale.
PSR ¶ 12.
The informant again then brought
the substance to police, who conducted a field test and confirmed
the presence of methylmethcathinone.
PSR ¶ 13.
On May 27, 2015, the informant conducted a third controlled
purchase of two grams of methylmethcathinone -- and, this time,
arranged also to purchase a handgun from petitioner.
PSR ¶ 14.
The informant arrived at petitioner’s residence and followed him
inside, where a .380-caliber Smith & Wesson pistol was sitting on
the coffee table.
PSR ¶ 15.
Petitioner picked up the handgun,
used a shirt to wipe off his fingerprints, and handed it to the
informant.
Ibid.
Petitioner then measured out two grams of the
drugs, which he gave to the informant in a plastic bag.
Ibid.
The informant paid petitioner $460 for the gun and the drugs.
Ibid.
2.
In July 2016, a federal grand jury in the Middle District
of Florida returned an indictment charging petitioner with one
count of possessing a firearm -- namely, the Smith & Wesson pistol
that petitioner sold to the informant on May 27, 2015 -- following
4
a conviction for a misdemeanor crime of domestic violence, in
violation of 18 U.S.C. 922(g)(9) and 924(a)(2).
Indictment 1.
Section 924(a)(2) provides that “[w]hoever knowingly violates,”
inter alia, Section 922(g) “shall be fined as provided in this title,
imprisoned not more than 10 years, or both.”
18 U.S.C. 924(a)(2).
Section 922(g)(9) provides that
[i]t shall be unlawful for any person * * * who has been
convicted in any court of a misdemeanor crime of domestic
violence[] 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. 922(g)(9).
Under 18 U.S.C. 921(a)(33)(A), the term
“misdemeanor crime of domestic violence” is defined as follows:
(A) Except as provided in subparagraph (C), the term
“misdemeanor crime of domestic violence” means an offense
that -(i) is a
Tribal law; and
misdemeanor
under
Federal,
State,
or
(ii) has, as an element, the use or attempted use
of physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse, parent,
or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is
cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly
situated to a spouse, parent, or guardian of the victim.
Ibid. (footnotes omitted).
Section 921(a)(33) does not contain a
subparagraph
contain
(C);
it
does
a
subparagraph
(B),
which
specifies certain circumstances in which “[a] person shall not be
considered to have been convicted of such an offense” defined in
5
subparagraph (A).
18 U.S.C. 921(a)(33)(B); see United States v.
Johnson, 981 F.3d 1171, 1185 & n.10 (11th Cir. 2020) (construing
“the reference to subparagraph (C) to be a typographical error
intended to refer to subparagraph (B),” which in turn “articulat[es]
what are effectively affirmative defenses”), petition for cert.
pending, No. 21-5432 (filed Aug. 17, 2021).
The predicate offense alleged in the federal indictment was
petitioner’s
Indictment 1.
2004
Florida
conviction
for
“Domestic
Battery.”
In May 2004, petitioner had pleaded no contest to
Florida battery, in violation of Fla. Stat. § 784.03(1) (2001).
Pet. App. A2.
That conviction arose from an incident in which
petitioner threatened his cohabitating domestic partner, who was
pregnant at the time, at knifepoint.
Ibid.
The original charge
for that conduct had been felony aggravated assault with a deadly
weapon.
Ibid.
The state information and judgment in petitioner’s
case identified the crime as “domestic battery.”
Ibid. (citing
Fla. Stat. § 784.03(1) (2001)).
Petitioner moved to dismiss the indictment, asserting that
the Second Amendment barred his conviction under 18 U.S.C. 922(g)
and that his guilty plea in the 2004 Florida domestic-battery case
was not knowingly made.
Pet. App. A2-A3.
The district court
denied the motion, and the parties proceeded to a bench trial on
stipulated facts.
Id. at A3.
While preserving his arguments,
6
petitioner “otherwise stipulated that the facts were sufficient to
find him guilty of the charged offense beyond a reasonable doubt.”
Ibid.
The court found petitioner guilty.
Ibid.
Petitioner subsequently made a renewed motion for a judgment
of acquittal, contending that the government was required, but had
failed, to prove that he knew he had been convicted of a misdemeanor
crime of domestic violence when he possessed the firearm.
App. A3.
The district court denied the motion, finding that it
contradicted petitioner’s earlier stipulation.
Ibid.
sentenced petitioner to two years of probation.
Ibid.
3.
Pet.
The court
The court of appeals affirmed in an unpublished per
curiam disposition.
Pet. App. A1-A6.
As relevant here, the court of appeals rejected petitioner’s
renewed contention that the government was required, but had
failed, to prove that petitioner “knew he possessed the status of
a convicted domestic violence misdemeanant.”
Pet App. A5.
The
court recognized that, after judgment was entered in petitioner’s
case, this Court held in Rehaif v. United States, 139 S. Ct. 2191
(2019),
that
conviction
under
Sections
922(g)
and
924(a)(2)
requires “that the defendant knew he possessed a firearm and also
that he knew he had the relevant status when he possessed it.”
Id.
at
2194;
see
id.
at
2195-2200.
And
“[a]fter
closely
considering Rehaif,” the court of appeals determined that “the
7
binding stipulation” in petitioner’s case “contained sufficient
evidence to uphold [his] conviction because it demonstrate[d]
[petitioner’s] knowledge of his status.”
Pet. App. A5.
The court
observed that the Court in Rehaif -- which had “express[ed] no
view
* * *
about what precisely the Government must prove to
establish a defendant’s knowledge of status in respect to other
§ 922(g) provisions” beyond the unlawful-presence provision at
issue there, 139 S. Ct. at 2200 -- had expressed “doubt[] [that]
the obligation to show knowledge would be particularly burdensome”
and had cited “caselaw holding that knowledge may be shown through
circumstantial evidence.”
at 2198).
Pet. App. A6 (citing Rehaif, 139 S. Ct.
The court of appeals found that, in this case, “the
direct and circumstantial evidence of [petitioner’s] knowledge of
his status as a domestic violence misdemeanant contained in the
stipulation [wa]s overwhelming.”
The
court
of
appeals
Ibid.
noted
that
Section
921(a)(33)(A)
“defines ‘misdemeanor crime of domestic violence’ as a misdemeanor
offense that (1) ‘has, as an element, the use of force,’ and (2) is
committed by a person who has a specified domestic relationship
with the victim.”
Pet. App. A5 (quoting United States v. Hayes,
555 U.S. 415, 426 (2009), in turn quoting 18 U.S.C. 921(a)(33)(A))
(brackets omitted).
The court further noted this Court’s holding
in United States v. Hayes that, “while the domestic relationship
8
‘must be established,’ it ‘need not be denominated an element of
the predicate offense.’”
Ibid. (quoting Hayes, 555 U.S. at 426).
And the court of appeals observed that “the stipulation that
[petitioner] entered into stated that he ‘committed a battery’ -showing his knowledge that his predicate offense involved the use
of force,” ibid. (brackets omitted); further stated that “the
battery
was
‘against
Sherry
Lynette
Brown,
who
[petitioner]
cohabitated with and [wa]s similarly situated to a spouse’ -showing knowledge of the specified domestic relationship,” ibid.;
clarified that, “[a]lthough [petitioner] was convicted of battery
under [Fla. Stat.] § 784.03(1), the Information and Judgment title
the
charge
as
‘domestic
battery,’”
ibid.;
and
incorporated
petitioner’s express acknowledgment “that these same facts were
‘sufficient
to
allow’
the
district
court
‘to
find
beyond
a
reasonable doubt that [petitioner] committed the offense charged
in the [federal] indictment.’”
Id. at A5-A6.
The court of appeals contrasted petitioner’s case with a
hypothetical that this Court in Rehaif had offered as illustrating
why a defendant might be unaware of his status as a person
prohibited by Section 922(g) from possessing a firearm.
A5.
Pet. App.
The Court in Rehaif had posited “a person who was convicted
of a prior crime but sentenced only to probation, who does not
know that the crime is ‘punishable by imprisonment for a term
9
exceeding one year.’”
922(g)(1)).
139 S. Ct. at 2198 (quoting 18 U.S.C.
The court of appeals noted that, “[i]n that case, the
absence of an ordinary feature of felonies -- that they are
punishable by more than a year in prison -- might weaken the
inference that a defendant knew his crime was a felony.”
App. A5.
Pet.
“By contrast,” the court observed, “the stipulation here
show[ed] that [petitioner] knew that all of the defining features
of misdemeanor crimes of domestic violence were present in his
case.”
Ibid.
ARGUMENT
Petitioner renews his contention (Pet. 8-22) that the trial
evidence was insufficient to establish that he knew that he had
been convicted of a “misdemeanor crime of domestic violence,”
18 U.S.C. 922(g)(9), when he possessed a firearm.
The court of
appeals correctly rejected that contention, and its decision does
not conflict with any decision of this Court or of another court
of appeals.
1.
Further review is not warranted.
Federal
law
prohibits
possession
of
a
firearm
or
ammunition by certain categories of people, including those who
have previously been convicted of “misdemeanor crime[s] of domestic
violence.”
18 U.S.C. 922(g)(9).
A separate provision, 18 U.S.C.
924(a)(2), specifies criminal penalties for anyone who “knowingly
violates” one of the prohibitions contained in Section 922(g).
10
In Rehaif v. United States, 139 S. Ct. 2191 (2019), this Court
held that the word “knowingly” in Section 924(a)(2) modifies “both
* * *
the defendant’s conduct” -- i.e., his possession of a
firearm -- “and
* * *
the defendant’s status” as a member of a
particular restricted group, id. at 2194. The petitioner in Rehaif
had
challenged
his
conviction
for
possessing
a
firearm
as
a
noncitizen not lawfully present in the United States, in violation
of Section 922(g)(5).
Ibid.
The Court reversed the judgment
affirming the defendant’s conviction under that provision, but it
“express[ed] no view
* * *
about what precisely the Government
must prove to establish a defendant’s knowledge of status in
respect to other § 922(g) provisions not at issue [t]here.”
Id.
at
the
2200.
The
Court
expressed
“doubt,”
however,
“that
obligation to prove a defendant’s knowledge of his status” would
be particularly “burdensome,” because “‘knowledge can be inferred
from circumstantial evidence.’”
Id. at 2198 (quoting Staples v.
United States, 511 U.S. 600, 615 n.11 (1994)).
The
court
of
appeals
properly
applied
Rehaif
to
the
circumstances of this case in determining that the trial evidence
was sufficient to establish petitioner’s knowledge of his “status
as a domestic violence misdemeanant” when he possessed (and sold)
a handgun.
Pet. App. A6; see id. at A5-A6.
As the court
recognized,
the
evidence
“direct
and
circumstantial
of
11
[petitioner’s]
knowledge
of
[that]
status
* * *
[wa]s
overwhelming.” Id. at A6. The term “misdemeanor crime of domestic
violence” is defined in relevant part to include “a misdemeanor
offense that (1) ‘has, as an element, the use of force,’ and (2) is
committed by a person who has a specified domestic relationship
with the victim.”
United States v. Hayes, 555 U.S. 415, 426 (2009)
(quoting 18 U.S.C. 921(a)(33)(A)) (brackets omitted).
And the
stipulation of facts into which petitioner entered for purposes of
his federal bench trial both “show[ed] his knowledge that his
predicate offense involved the use of force” by “stat[ing] that he
‘committed a battery,’” and “show[ed] knowledge of the specified
domestic relationship” by stating “that the battery was ‘against’”
a person “who [petitioner] cohabitated with and is similarly
situated to a spouse.”
Pet. App. A5 (brackets omitted).
Petitioner himself had “clearly stipulated that these same
facts were ‘sufficient to allow’ the district court ‘to find beyond
a reasonable doubt that [petitioner] committed the offense charged
in the indictment,’” and the court of appeals thus correctly found
them to be more than sufficient evidence that petitioner had
knowledge of that fact.
Pet. App. A5-A6.
As it correctly
recognized, petitioner’s circumstances differed starkly from those
that this Court hypothesized in Rehaif in which a person might
understandably lack knowledge of the fact that disqualified him
12
from possessing a gun.
Id. at A5.
Unlike a defendant who was
“convicted of a prior crime but sentenced only to probation” -and who might be unaware “that the crime [wa]s ‘punishable by
imprisonment for a term exceeding one year,’” Rehaif, 139 S. Ct.
at 2198 (quoting 18 U.S.C. 922(g)(1)), making it unlawful for him
to possess a firearm following that conviction -- petitioner’s
stipulation shows that he knew he had been convicted of battering
his domestic partner, a crime that satisfies the definition of
“misdemeanor
crime
of
domestic
violence.”
18
U.S.C.
921(a)(33)(A).
2.
Petitioner contends (Pet. 17-19) that the government was
required,
but
failed,
to
prove
that
he
knew
his
“conviction
qualifie[d] as a ‘misdemeanor crime of domestic violence’” as a
legal matter -- including that the legal definition of the offense
“had, as an element, ‘the use or attempted use of physical force.’”
Pet. 17 (citation omitted).
must
show
not
only
a
Under petitioner’s theory, the proof
defendant’s
conviction
for
a
violent
misdemeanor offense against a domestic partner, but also that the
defendant
knew
that
the
offense
for
which
he
was
convicted
categorically matches the definition of “‘misdemeanor crime of
domestic
violence’”
under
this
Court’s
precedent
applying
a
“categorical approach” to that statutory term. E.g., United States
v. Castleman, 572 U.S. 157, 168 (2014).
That contention -- which
13
would immunize domestic abusers who are not subjectively aware
that every other offense under the state statute of conviction
would likewise involve physical force -- lacks merit.
As the court of appeals explained in a published opinion
issued after its unpublished disposition in this case, this Court’s
prior decisions have drawn a clear line between a defendant’s
knowledge of the facts that make his conduct criminal and knowledge
that the conduct gives rise to criminal liability upon conviction.
See United States v. Johnson, 981 F.3d 1171, 1181-1182 (11th Cir.
2020), petition for cert. pending, No. 21-5432 (filed Aug. 17, 2021).
The Court has, in particular, “explained that,” under its mens rea
precedents, “a defendant generally must ‘know the facts that make
his conduct fit the definition of the offense,’” but need “‘not
know that those facts give rise to a crime.’”
Elonis v. United
States, 575 U.S. 723, 735 (2015) (quoting Staples, 511 U.S. at 608
n.3);
see
id.
at
735-736
(discussing
prior
cases);
Johnson,
981 F.3d at 1182.
For example, in Liparota v. United States, 471 U.S. 419
(1985), on which Rehaif relied, see 139 S. Ct. at 2198, the Court
addressed
the
mens
rea
required
under
a
statute
prescribing
criminal penalties for someone who “knowingly uses, transfers,
acquires, alters, or possesses” food stamps “in any manner not
authorized
by”
applicable
statutes
or
regulations,
Liparota,
14
471 U.S. at 420 (citation omitted).
statute
required
proof
that
the
The Court held that the
defendant
knew
that
those
provisions did not authorize his conduct, see id. at 423-433, but
made clear that the government need not prove that the defendant
knew that his unauthorized possession was a crime, see id. at 425
n.9.
The Court emphasized that “the Government need not show that
he had knowledge of specific regulations governing food stamp
acquisition
extraordinary
or
possession,”
evidence
that
petitioner’s state of mind.”
nor
need
would
it
“introduce
conclusively
Id. at 434.
any
demonstrate
Instead, the Court
explained, “the Government may prove by reference to facts and
circumstances surrounding the case that petitioner knew that his
conduct was unauthorized or illegal.”
Ibid.
Similarly, in Staples v. United States, the Court concluded
that, to support a conviction for possession of a machinegun that
is
not
properly
registered
with
the
federal
government,
the
government must prove only that the defendant “knew the weapon he
possessed had the characteristics that brought it within the
statutory definition of a machinegun.”
at 604-619.
511 U.S. at 602; see id.
“In other words,” Staples held that “the defendant
‘must know the facts that make his conduct illegal,’” but a
“defendant d[oes] not need to know the statutory definition of a
15
machinegun to be convicted.”
Johnson, 981 F.3d at 1182 (quoting
Staples, 511 U.S. at 619).
Likewise here, to be convicted under 18 U.S.C. 922(g)(9) and
924(a)(2), a defendant “must have known that he was convicted of
a misdemeanor, and he must have known the facts that made that
crime qualify as a misdemeanor crime of domestic violence,” but
need not know “that [this] Court had defined the term [‘misdemeanor
crime of violence’] and what that definition was” or the legal
consequences that would flow from his possession of a firearm
following his conviction.
Johnson, 981 F.3d at 1182-1183.
Instead, “the knowledge-of-status requirement demands that
the
defendant
have
known
only
that,
to
be
convicted
of
his
misdemeanor crime, he must have engaged in or threatened to engage
in conduct that constitutes ‘physical force’ as the Supreme Court
has defined it.”
Johnson, 981 F.3d at 1182-1183.
Rehaif did not
adopt an approach that “requires technical knowledge of the law.”
Id. at 1182.
As the court of appeals observed, “[t]he Court did
not conclude that Congress expected a person to have performed a
Descamps
analysis
on
his
misdemeanor
crime
of
conviction
to
determine whether any element of the statute under which he was
convicted categorically required the use or threatened use of
‘physical force.’”
Ibid. (citing Descamps v. United States,
570 U.S. 254 (2013)) (footnote omitted).
It is highly implausible
16
that Congress confined criminal liability for possession of a
firearm by a person previously convicted of a domestic-violence
offense to a small, possibly null subset of defendants with the
perspicacity and legal acumen to anticipate the application of
this Court’s case law to their particular prior crimes.
Indeed,
construing Sections 922(g)(9) and 924(a)(2) to require proof that
a defendant had analyzed his prior conviction under this Court’s
categorical-approach precedents would likely make prosecutions
based on Section 922(g)(9) prohibitively difficult.
that
approach
would
impose
an
“unduly
heavy
At a minimum,
burden
on
the
Government” in proving offenses under that provision -- a burden
of the kind the Court has repeatedly disavowed. Liparota, 471 U.S.
at 433-434; see Rehaif, 139 S. Ct. at 2198.
In
contending
that
Rehaif
compels
construing
Sections
922(g)(9) and 924(a)(2) to require proof that the defendant knew
that his prior offense categorically qualifies under this Court’s
precedent
as
a
“misdemeanor
crime
of
domestic
violence,”
petitioner relies on a passage in the dissenting opinion in Rehaif.
Pet. 18; see ibid. (quoting 139 S. Ct. at 2208 (Alito, J.,
dissenting)).
In that passage, the dissent posed a rhetorical
question about the potential application of the Court’s holding to
Section 922(g)(9): “If the Justices of this Court, after briefing,
argument, and careful study, disagree about the meaning of a ‘crime
17
of domestic violence,’ would the majority nevertheless require the
Government to prove at trial that the defendant himself actually
knew that his abuse conviction qualified?”
2208 (Alito, J., dissenting).
Rehaif, 139 S. Ct. at
Petitioner appears (Pet. 18-19) to
assume that the Court intended to require such proof despite the
dissent’s suggestion that it would rarely if ever be forthcoming.
The
question.
Court,
however,
expressly
reserved
Rehaif, 139 S. Ct. at 2200.
judgment
on
that
Citing that passage of the
dissent, the Court’s opinion
express[ed] no view * * * about what precisely the Government
must prove to establish a defendant’s knowledge of status in
respect to other § 922(g) provisions not at issue here. See
post, at 2207-2208 (ALITO, J., dissenting) (discussing other
statuses listed in § 922(g) not at issue here).
Ibid.
Petitioner errs in imputing to the Court’s opinion an answer
to a question that was not presented and that it explicitly declined
to reach.
Indeed, the majority’s emphasis on the necessity of a
knowledge requirement to ensure a sufficiently culpable state of
mind, see id. at 2195, 2197-2198, cuts squarely against petitioner’s
parsing-the-legal-elements approach.
A defendant’s awareness that
his own domestic-violence crime involved force renders him culpable
without regard to his irrelevant knowledge or ignorance of the legal
conclusion that every violation of the statute would.
Moreover, to the extent petitioner contends (Pet. 20) that
he could not be convicted under Sections 922(g)(9) and 924(a)(2)
18
absent proof that he knew he was “prohibited” by his domesticviolence-misdemeanant
status
from
possessing
a
firearm
or
ammunition, his approach would transform the knowledge element
identified by this Court in Rehaif into a willfulness requirement.
See Pet. 20-21 (“[I]ndividuals often plead guilty to misdemeanor
offenses without ever being told a conviction will forever bar
them from possessing a gun.
guilty
to
misdemeanor
* * *
offenses
[I]ndividuals often plead
that
qualify
as
‘misdemeanor
crime[s] of domestic violence’ without ever knowing they are doing
so,
let
alone
the
Second
Amendment
consequences
of
their
decision.” (citations omitted)); cf. Rehaif, 139 S. Ct. at 2205
(Alito,
J.,
dissenting)
(“[T]he
pointed
use
of
the
term
‘knowingly,’ as opposed to ‘willfully,’ in § 922(g), provides a
ground to infer that Congress did not mean to require knowledge
of illegality.”).
Every court of appeals to have passed on that
19
contention has correctly rejected it. 1
Petitioner identifies no
sound basis to disturb that settled consensus.
3.
warranted
Petitioner asserts (Pet. 21) that this Court’s review is
to
resolve
a
conflict
in
the
courts
of
appeals.
Specifically, petitioner asserts (Pet. 8-11) that the Seventh
Circuit has adopted his position on the knowledge required, and
the “Ninth Circuit would likely rule the same way as the Seventh
Circuit.” Pet. 10 (emphasis omitted); see Pet. 8-11 (citing United
States v. Triggs, 963 F.3d 710 (7th Cir. 2020); United States v.
Door, 996 F.3d 606 (9th Cir. 2021)).
those
decisions
and
Petitioner misapprehends
overstates
the
tension
States
Triggs,
in
the
circuits’
Seventh
Circuit
approaches.
a.
In
United
v.
the
considered a forfeited claim of Rehaif error in the context of a
See, e.g., United States v. Austin, 991 F.3d 51, 59
(1st Cir. 2021); United States v. Bryant, 976 F.3d 165, 172-173 (2d
Cir. 2020), cert. denied, No. 20-7300 (June 21, 2021); United States
v. Moody, 2 F.4th 180, 197-198 (4th Cir. 2021); United States v.
Trevino, 989 F.3d 402, 405 (5th Cir. 2021); United States v. Bowens,
938 F.3d 790, 797 (6th Cir. 2019), cert. denied, 140 S. Ct. 814,
and 140 S. Ct. 2572 (2020); United States v. Maez, 960 F.3d 949,
954-955 (7th Cir. 2020), cert. denied, Nos. 20-6129, 20-6226, and
20-6227 (June 21, 2021); United States v. Robinson, 982 F.3d 1181,
1187 (8th Cir. 2020); United States v. Singh, 979 F.3d 697, 727
(9th Cir. 2020), cert. denied sub. nom. Matsura v. United States,
No. 20-1167 (May 24, 2021); United States v. Benton, 988 F.3d 1231,
1237-1238 (10th Cir. 2021); Johnson, 981 F.3d at 1181-1182 (11th
Cir.); United States v. Brown, 845 Fed. Appx. 1, 3 (D.C. Cir. 2021)
(per curiam).
1
20
defendant’s
pre-Rehaif
guilty
plea
to
possessing
following a misdemeanor crime of domestic violence.
714.
a
firearm
963 F.3d at
Applying plain-error review, the Seventh Circuit vacated the
defendant’s conviction, finding a reasonable probability that he
would not have pleaded guilty if he had known that the government
had to prove the Rehaif knowledge element.
Id. at 717.
That
finding rested on two grounds.
First, the court of appeals noted that, “to convict Triggs at
trial, the government had to prove that he knew he had been
convicted of a ‘misdemeanor crime of domestic violence’ as that
phrase is defined for purposes of § 922(g)(9) (though not that he
knew he was barred from possessing firearms).”
at
712
(emphasis
prosecutions
for
omitted).
The
possessing
a
Triggs, 963 F.3d
court
recognized
that,
firearm
following
a
in
felony
conviction under 18 U.S.C. 922(g)(1), “a defendant will have
difficulty establishing prejudice from a Rehaif error because the
new knowledge element is quite easy to prove, especially when the
defendant previously served more than a year in prison.”
963 F.3d at 715.
Triggs,
But the court took the view that “the comparative
complexity of th[e] definition” of “misdemeanor crime of domestic
violence” in Section 922(g)(9) changed “the guilty-plea calculus,”
such that Rehaif “improve[d] Triggs’s trial prospects” by “giving
21
him at least a plausible argument that he was unaware that his
2008 battery conviction is a crime of this nature.”
Second,
“[b]eyond
the
complexity
of
Id. at 716.
the
statutory
definition,” the court of appeals found that “the messy nature of
the proceedings that led to Triggs’s 2008 conviction ma[de] the
government’s
burden
on
the
Rehaif
element
challenging.”
Triggs, 963 F.3d at 716.
that
much
more
Specifically, the court
recounted that Triggs did not have a lawyer in his 2008 case; that
the criminal complaint “was entirely conclusory and not quite
correct”; that “the plea questionnaire that Triggs signed and
submitted was woefully incomplete and unclear”; that “the judge
conducted only a brief and perfunctory colloquy before accepting
Triggs’s no-contest pleas”; and that it was “unclear whether Triggs
was ever properly notified of the nature of the battery charge or
its required elements.”
Ibid.
While acknowledging that “the
record contains evidence that works against Triggs on the Rehaif
element” as well, the court determined that it was “not necessary
to weigh Triggs’s likelihood of success at trial” but only whether
he had “establish[ed] a reasonable probability that he would not
have
pleaded
burden.”
guilty
had
he
known
of
the
government’s
Rehaif
Id. at 717.
Triggs
did
not
present,
and
did
not
address,
whether
admissions like the ones in petitioner’s stipulation here would be
22
sufficient evidence at trial to establish knowledge.
The Seventh
Circuit did contrast the simplicity of defining the population of
felons subject to restriction under Section 922(g)(1) with the
“comparative complexity” involved in prosecuting domestic-violence
misdemeanants
under
Section
922(g)(9).
Triggs,
963
F.3d
at
715-716. But no dispute exists that misdemeanor crimes of domestic
violence
constitute
a
offenses than felonies.
more
“complex[]”
Id. at 716.
category
of
predicate
As the Seventh Circuit
correctly recognized, in the mine-run Section 922(g)(1) case, the
straightforward fact that “the defendant previously served more
than a year in prison” makes knowledge of felon status “quite easy
to prove.”
Id. at 915; see Greer v. United States, 141 S. Ct.
2090, 2097 (2021).
And the decision below here applied a more
complex knowledge requirement for a misdemeanor crime of domestic
violence, consisting of three components, none of which can be
proved by a simple incarceration record.
See Pet. App. A5-A6.
The Seventh Circuit did not articulate a different knowledge
requirement,
discuss
whether
or
how
the
categorical
approach
(which it did not even mention) might or might not play a role, or
even “weigh Triggs’s likelihood of success at trial.”
963 F.3d at 717.
Triggs,
Instead, the court’s factbound assessment that
Triggs had “establish[ed] a reasonable probability that he would
not have pleaded guilty had he known of the government’s Rehaif
23
burden,” id. at 717, sheds little light on the contours of the
government’s burden in Section 922(g)(9) cases going forward, and
offers no basis for inferring a circuit conflict on the question
presented here.
b.
Petitioner’s reliance (Pet. 10-11) on the Ninth Circuit’s
decision in United States v. Door is similarly misplaced.
There,
the court considered a forfeited claim of Rehaif trial error
arising from the defendant’s conviction for possessing body armor
following a conviction for a felony crime of violence, in violation
of 18 U.S.C. 931(a)(1) and 924(a)(7). 2
Finding that Door had
failed to “offer a plausible argument that he lacked the requisite
knowledge of his status as a violent felon or that he would have
proceeded differently at trial had the government been required to
prove his knowledge of his prohibited statuses,” the Ninth Circuit
denied relief.
Door, 996 F.3d at 620.
Notwithstanding that ultimate disposition, petitioner asserts
(Pet. 11) that “Door is consistent with the Seventh Circuit’s
decision in Triggs” and that “both cases
* * *
held the defendant
Door was also convicted of possessing a firearm
following a felony conviction, in violation of 18 U.S.C. 922(g)(1)
and 924(a)(2), and likewise challenged that conviction on Rehaif
grounds.
See Door, 996 F.3d at 618-619 (denying relief as to
Section 922(g)(1) conviction). Petitioner does not rely on the
court’s analysis of that claim to support his assertion of a
circuit conflict.
2
24
had
to
know
his
prior
crime
had
[an]
qualifying it as a crime of violence.
element”
categorically
But the Ninth Circuit’s
comment that “Rehaif requires the government to prove that a
defendant charged with violating § 931(a) knew he had a felony
conviction and that the felony of which he was convicted had ‘as
an element the use, attempted use, or threatened use of physical
force against the person or property of another,’” Door, 996 F.3d
at 616 (quoting 18 U.S.C. 16(a)), is consistent with the Eleventh
Circuit’s opinion in Johnson, which noted that it did not “disagree
with th[e] princip[le]” that “Rehaif requires the government to
‘prove the defendant was aware that his prior conviction included
the element of use or attempted use of force.’”
981 F.3d at 1183
n.7 (citation omitted).
And far from holding that the knowledge required under Rehaif
could be satisfied only by a showing that the defendant knew the
precise elements of his qualifying offense and understood the legal
consequences that flowed from them, the Ninth Circuit in Door
rejected the suggestion “that the government must prove that the
defendant knew that he had been convicted of a crime that a court
has specifically declared to be a ‘crime of violence,’” which it
stated “would be a nearly impossible burden for the government,”
and “would severely limit the scope of § 931(a)(1).”
615 (citation omitted).
996 F.3d at
The Ninth Circuit instead reasoned that,
25
in
evaluating
a
defendant’s
knowledge
of
the
nature
of
his
predicate conviction, “[t]he term ‘physical force’ should be given
its ordinary meaning,” and a scienter showing contingent on “the
lay understanding of what constitutes a crime of violence” would
thus be sufficient to sustain a conviction under Section 931(a)(1).
Ibid.; see also id. at 615-616 (predicting that “a defendant may
find himself pleasantly surprised to learn that a court has deemed
his past crime not to be a crime of violence” (emphasis omitted)).
The
court
was
therefore
conviction
for
“felony
satisfied
that
harassment,”
Door’s
Wash.
Washington
Rev.
Code.
§ 9A.46.020(1)(a)(i) and (2)(b) (1997), premised on a theory that
he had “‘threaten[ed] to kill’ a person,” adequately put him on
notice that he had committed a violent felony, notwithstanding his
“argu[ment]
that
the
record
contain[ed]
no
plea
colloquy
establishing that he understood the nature of felony harassment.”
Door, 996 F.3d at 620 (citation omitted).
Little if any daylight
exists
a
between
understanding”
Door’s
that
his
reference
offense
to
defendant’s
“constitute[d]
a
crime
“lay
of
violence,” id. at 615, and the decision below’s reference to a
defendant’s “knowledge that his predicate offense involved the use
of force,” Pet. App. A5, and the decisions do not conflict.
c.
Even if petitioner’s interpretation of Triggs and Door
were sound, he has identified at most a shallow, recent, and narrow
26
divergence within a small fraction of the courts of appeals.
Such
modest variation would not warrant this Court’s review at this
time.
Only the Seventh and Eleventh Circuits have even arguably
confronted the scope of Section 922(g)(9)’s knowledge-of-status
element
in
published
decisions,
and
no
court
of
appeals
has
considered the question presented en banc (as the Eleventh Circuit
declined to do here, Pet. App. B1).
Further consideration by the
courts of appeals may resolve any nascent disagreement and could
provide additional analysis that could benefit this Court if review
became warranted at a later date.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
BRIAN H. FLETCHER
Acting Solicitor General
KENNETH A. POLITE, JR.
Assistant Attorney General
JOSHUA K. HANDELL
Attorney
SEPTEMBER 2021
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