Petition for Writ of Certiorari — Raymon Walters, Petitioner v. United States

Supreme Court briefDec 2, 2025

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No. 25-____

IN THE

RAYMON WALTERS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

EPHRAIM A. MCDOWELL

Counsel of Record

ALEXANDER J. KASNER

ELIAS S. KIM

COOLEY LLP

1299 Pennsylvania Ave.,

N.W., Suite 700

Washington, DC 20004

(202) 842-7800

emcdowell@cooley.com

QUESTION PRESENTED

In McCoy v. Louisiana, 584 U.S. 414 (2018), this

Court held that the Sixth Amendment protects a defendant’s “right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based

view is that confessing guilt offers the defendant the

best chance” to obtain a less severe sentence. Id. at

417. The McCoy dissent observed that the majority

opinion left open “a related—and difficult—question”:

“When guilt is the sole issue for the jury, is it ever permissible for counsel to make the unilateral decision to

concede an element of the offense charged?” Id. at 435

(Alito, J., dissenting). The question presented is:

Whether defense counsel may concede an element

of an offense over the defendant’s objection, where the

concession is reasonably designed to advance the defendant’s objective of obtaining an acquittal.

(i)

RELATED PROCEEDINGS

United States District Court (D.N.J.):

United States v. Walters, No. 19-cr-176 (Apr. 28,

2022) (judgment)

United States Court of Appeals (3d Cir.):

United States v. Walters, No. 22-1812 (Sept. 4,

2025)

iii

TABLE OF CONTENTS

Page

Opinions below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional provision involved .............................. 2

Introduction ................................................................ 2

Statement of the case ................................................. 4

Reasons for granting the petition .............................. 9

The decision below creates a

conflict among courts of

appeals and state high courts ......... 10

The question presented is

important to criminal

defendants and defense counsel ..... 13

The decision below is incorrect ....... 15

Conclusion ................................................................. 22

Appendix A:

Opinion, 3d Cir. No. 22-1812, Sept. 4,

2025 ................................................................. 1a

Appendix B:

Order, D.N.J. No. 1:19-CR-176-1, July 2 & 7,

2021 ............................................................... 23a

TABLE OF AUTHORITIES

Page(s)

Cases

Barker v. Vannoy,

No. 21-cv-1997, 2022 WL 22879050

(E.D. La. Sept. 12, 2022) ...................................... 12

Christensen v. United States,

Nos. 18-cv-8235, 14-cr-8164, 2020

WL 1672771 (D. Ariz. Apr. 6, 2020) .................... 13

Crump v. Halvorson,

No. 18-cv-1334, 2019 WL 3431787

(D. Minn. June 10, 2019) ..................................... 13

Darden v. United States,

708 F.3d 1225 (11th Cir. 2013) ............................ 19

Davis v. United States,

No. 22-5920, 2023 WL 3294535 (6th Cir.

Apr. 10, 2023) ................................................. 11, 12

Epperson v. Commonwealth,

645 S.W.3d 405 (Ky. 2021) ............................... 3, 11

Faretta v. California,

422 U.S. 806 (1975) ......................................... 17-18

Gonzalez v. United States,

553 U.S. 242 (2008) .................................. 16, 18, 20

Jones v. Barnes,

463 U.S. 745 (1983) .................................. 18, 19, 20

Martinez-Armestica v. United States,

468 F. Supp. 3d 470 (D.P.R. 2020)....................... 14

Mason v. Matteson,

No. 22-00661, 2025 WL 1932388

(C.D. Cal. Mar. 31, 2025) ..................................... 22

McCoy v. Louisiana,

584 U.S. 414 (2018) .... 2-4, 7-9, 11, 14, 16-18, 20-22

New York v. Hill,

528 U.S. 110 (2000) .............................................. 18

Old Chief v. United States

519 U.S. 172 (1997) .................................... 9, 15, 17

People v. Flores,

246 Cal. Rptr. 3d 77 (Cal. Ct. App. 2019) ............ 13

Perez Vasquez v. United States,

No. 15-cr-10338, 2023 WL 6541441

(D. Mass. Oct. 6, 2023) ......................................... 12

Schaffer v. United States,

No. 21-cv-12815, 2023 WL 3199171

(D.N.J. May 1, 2023) ............................................ 12

In re Somerville,

14 Wash. App. 2d 1068, 2020 WL

6281524 (Wash. Ct. App. Oct. 27, 2020).............. 13

State v. Crump,

848 S.E.2d 501 (N.C. Ct. App. 2020) ................... 13

Thompson v. United States,

826 F. App’x 721 (11th Cir. 2020) ........................ 12

United States v. Breedlove,

No. 21-cr-00320, 2023 WL 3143424

(S.D. Ind. Apr. 28, 2023) ...................................... 14

United States v. Chambers,

No. 4:13-CR-20254, 2020 WL 2526116

(E.D. Mich. May 18, 2020) ................................... 13

United States v. Dat,

No. 22-cr-147, 2024 WL 3851148

(D. Neb. Aug. 15, 2024) ........................................ 14

United States v. Emilien,

No. 20-cr-26, 2021 WL 3206307

(E.D. La. July 29, 2021) ....................................... 14

United States v. George,

597 F. Supp. 3d 832 (E.D.N.C. 2022)................... 14

United States v. Goldtooth,

No. 19-cr-08108, 2020 WL 6048319

(D. Ariz. Oct. 13, 2020) ......................................... 14

United States v. Grant,

No. 20-cr-058, 2020 WL 7398780

(D. Colo. Dec. 17, 2020) ........................................ 14

United States v. Green,

No. 21-cr-159, 2022 WL 2276357

(S.D. Ga. June 23, 2022) ...................................... 15

United States v. Hamm,

Nos. 23-cv-244, 16-cr-85, 2024 WL

3329118 (E.D. Ky. Apr. 30, 2024) ........................ 12

United States v. Holman,

314 F.3d 837 (7th Cir. 2002) ................................ 19

United States v. Jackson,

No. 21-cr-12, 2021 WL 5711941

(D.D.C. Dec. 2, 2021) ............................................ 15

United States v. Jones,

482 F.3d 60 (2d Cir. 2006) ................................... 19

United States v. Montanez,

No. 23-cr-186, 2024 WL 4582387

(E.D.N.Y. Oct. 25, 2024) ....................................... 14

United States v. Roof,

10 F.4th 314 (4th Cir. 2021) ................................ 20

United States v. Rosemond,

958 F.3d 111 (2d Cir. 2020).......................... 3, 8, 10

vii

United States v. Smith,

No. 24-cr-406, 2025 WL 1256770

(N.D. Ohio Apr. 30, 2025) .................................... 14

United States v. Terry,

No. 18-cr-24, 2022 WL 819200

(W.D. Pa. Mar. 14, 2022)...................................... 14

United States v. Wilson,

960 F.3d 136 (3d Cir. 2020).................................... 8

Yarborough v. Gentry,

540 U.S. 1 (2003) (per curiam) ............................. 19

Constitution and Statutes

U.S. Const.

Amend. II ................................................................ 9

Amend. VI ........................... 2, 3, 7, 8, 10, 13, 16, 17

18 U.S.C.

§ 922(g)(1) .......................... 3-5, 9, 14, 15, 17, 18, 21

28 U.S.C.

§ 1254(1) ................................................................. 1

Miscellaneous

U.S. Sentencing Commission, Quick

Facts: 18 U.S.C. § 922(g) Firearms

Offenses (2024) ..................................................... 15

IN THE

RAYMON WALTERS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

————

Raymon Walters respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a22a) is available at 151 F.4th 122. The relevant ruling

of the district court was delivered orally (Pet. App.

33a).

JURISDICTION

The judgment of the court of appeals was entered

on September 4, 2025. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitution provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of

Counsel for his defence.

INTRODUCTION

This case presents an important Sixth Amendment

question that has divided courts of appeals and state

high courts: whether defense counsel may concede an

element of a crime over the defendant’s objection,

where doing so is reasonably designed to advance the

defendant’s objective of obtaining an acquittal. This

Court should grant certiorari to resolve the disagreement among lower courts and provide much-needed

guidance to criminal defendants, defense attorneys,

and trial judges.

In McCoy v. Louisiana, 584 U.S. 414 (2018), this

Court held that the Sixth Amendment affords a criminal defendant the right “to decide that the objective of

the defense is to assert innocence,” and thus to override defense counsel’s reasonable recommendation

that the defendant admit guilt to increase the likelihood of obtaining a reduced sentence. Id. at 422. The

Court explained that maintaining innocence of the

charged crime is not a “strategic choice[] about how

best to achieve a client’s objectives,” which would normally be reserved for the defense counsel. Id. Instead,

it is a “choice[] about what the client’s objectives in fact

are.” Id. In disagreeing with the majority, the McCoy

dissent recognized that the holding would lead to a

“difficult” follow-on question that can arise

“frequently: When guilt is the sole issue for the jury, is

it ever permissible for counsel to make the unilateral

decision to concede an element of the offense charged?”

Id. at 435 (Alito, J., dissenting).

That is the question presented in this case. Petitioner Raymon Walters was charged with unlawfully

possessing a firearm as a felon, in violation of 18

U.S.C. § 922(g)(1). His defense counsel advised Mr.

Walters to stipulate to the fact that he had a prior felony conviction and had knowledge of that conviction—

but Mr. Walters refused. Defense counsel nonetheless

sought to enter the stipulation, explaining that contesting the prior felony conviction would allow the government to introduce prejudicial evidence of multiple

prior convictions and related incarceration records.

The trial court rejected the stipulation; the government introduced the prejudicial evidence; and the jury

convicted Mr. Walters.

The Third Circuit affirmed, holding that the Sixth

Amendment guarantee recognized in McCoy encompasses the “right to contest discrete elements of the

crime.” Pet. App. 12a. In so doing, the Third Circuit

expressly “depart[ed] from” a contrary holding of the

Second Circuit. Id. at 13a n.7; see United States v.

Rosemond, 958 F.3d 111, 122 (2d Cir. 2020). And the

Third Circuit’s decision also squarely conflicts with a

decision of the Kentucky Supreme Court. Epperson v.

Commonwealth, 645 S.W.3d 405 (Ky. 2021).

This Court should resolve the conflict between

lower courts now because the question presented is

frequently recurring and critically important to criminal defendants and defense counsel. Numerous lower

courts have grappled with the question presented

since McCoy. That is unsurprising because defense

counsel regularly recommend that defendants strategically concede particular elements of crimes to advance the overall objective of achieving an acquittal.

Such a tactic is particularly common in Section

922(g)(1) cases like this one, because contesting a prior

felony conviction often has little benefit and yet can

invite the government to introduce prejudicial evidence of a defendant’s past crimes. Whenever a defendant resists his counsel’s recommended stipulation,

the question presented will arise. This Court should

answer that question for defendants, defense counsel,

and trial courts—especially because the current disagreement over that question turns on the meaning of

this Court’s own decision in McCoy.

Finally, this Court’s review is also warranted because the decision below is incorrect. In McCoy, this

Court expressly distinguished between “strategic disputes about whether to concede an element of a

charged offense,” which defense counsel has ultimate

authority to resolve, and “intractable disagreements

about the fundamental objective of the defendant’s

representation,” which the defendant has the right to

resolve. 584 U.S. at 426. That distinction follows directly from this Court’s precedent delineating the

proper allocation of authority between defense counsel

and criminal defendants. The Third Circuit’s decision

below is inconsistent with that precedent. This Court

should grant certiorari and reverse.

STATEMENT OF THE CASE

1. Between 2005 and 2013, Mr. Walters was convicted of crimes on nine occasions. Pet. App. 3a. Three

of those convictions were for drug distribution. Id. For

two of the convictions, Mr. Walters was sentenced to

multi-year terms of imprisonment. Id.

In 2018, Mr. Walters was stopped by police officers

who had received a call about a man brandishing a

firearm. Pet. App. 3a. Mr. Walters began running and

discarded a firearm during the chase. Id. The officers

ultimately arrested Mr. Walters. Id. He was charged

with unlawfully possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Pet. App. 3a.

2. During discovery, the government presented Mr.

Walters with the following stipulation:

Prior to May 21, 2018, the defendant, Raymon Walters, was convicted of a crime punishable by imprisonment for a term exceeding

one year, in a court in the State of New Jersey, and on May 21, 2018, Raymon Walters

knew that he had been so convicted and that

the conviction exposed him to a term of imprisonment exceeding one year.

Pet. App. 3a-4a. Mr. Walters instructed his counsel

not to sign the stipulation. Id. at 4a, 25a.

At the initial pretrial conference, Mr. Walters’s

counsel explained that although Mr. Walters did not

want to sign the stipulation, counsel believed that the

stipulation would enhance Mr. Walters’s chances of an

acquittal because otherwise “the jury [would] hear the

details of Mr. Walters’s prior convictions unnecessarily.” Pet. App. 26a. Counsel added that “[t]here’s

no advantage to not signing the . . . stipulation,” and

Mr. Walters “loses no rights by agreeing to . . . sanitize

the information regarding the conviction.” Id. Counsel opined that “it would be ineffective assistance on

my part if I did not enter into that stipulation.” Id.

Counsel thus sought to sign the stipulation over Mr.

Walters’s objection. Id. at 4a.

The government initially stated that it would accept the stipulation. Pet. App. 26a. Likewise, the district court noted that “it’s entirely up to counsel and

his or her discretion as to whether to enter into stipulations.” Id. at 27a. “Since counsel has chosen to do

so,” the court intended to “honor that decision” and

“read” the stipulation “to the jury.” Id.

Days later, however, the government and district

court reversed course. The government stated that it

would in fact “not be accepting the stipulation” because it was “concerned that a defense attorney [was]

overriding a defendant’s desire not to enter the stipulation, which includes a statement about his mental

state that he knew that he was in the category of defendants who were not allowed to have a gun.” Pet.

App. 30a. The government thus sought to introduce

evidence of two of Mr. Walters’s prior drug-related

convictions, as well as “incarceration records” for those

convictions. Id. at 31a.

Defense counsel objected, arguing that nothing

“precludes a lawyer from stipulating to certain things

on behalf of a client.” Pet. App. 31a-32a. And defense

counsel emphasized that “if the Government insists on

introducing this, it will simply inflame th[e] whole issue.” Id. at 32a. Ultimately, the district court agreed

with the government and barred Mr. Walters’s counsel

from signing the stipulation over Mr. Walters’s objection. Id. at 4a, 33a.

At trial, the district court allowed the government

to introduce evidence of Mr. Walters’s two 2011 drug-

related convictions and associated incarceration records. Pet. App. 4a. The jury convicted Mr. Walters,

and the district court sentenced him to 82 months of

imprisonment. Id. at 4a-5a.

3. The court of appeals affirmed. Pet. App. 1a-22a.

The court “analyze[d] whether counsel had the authority to enter the Stipulation” over Mr. Walters’s objection and whether the district court erred “by admitting

Walters’s prior conviction history.” Id. at 6a. In so

doing, the court explained that under the Sixth

Amendment, “strategic decisions” are “delegated” to

lawyers, while “defense objectives” are reserved “for

the accused.” Id. at 8a. The court acknowledged that

“the method of presenting the defense”—including

“what agreements to conclude regarding the admission of evidence”—is a strategic decision that “belongs

to counsel.” Id. at 8a-9a (citation omitted). And the

court observed that, under McCoy v. Louisiana, 584

U.S. 414 (2018), “whether to maintain innocence or

concede guilt” is an “objective” that the defendant has

a right to establish for himself. Pet. App. 9a.

Applying that framework, the court of appeals held

“that a defendant has ultimate authority to decide

whether to contest individual elements, except for certain narrowly defined jurisdictional elements.” Pet.

App. 10a-11a. The court “recognize[d]” that McCoy

held only that an accused has the right to “assert[] his

innocence.” Id. at 11a. But the court saw “no reason

to read McCoy to require the accused to adopt an all or

nothing approach—contest all elements or lose the

right to contest any.” Id.

The court of appeals nonetheless reaffirmed circuit

precedent adopting “one narrow exception to this

general rule.” Pet. App. 12a. Specifically, the court

noted that the accused does “not have ultimate authority to stipulate to a jurisdictional element” that “ha[s]

nothing to do with the [accused’s] ‘conduct, mental

states, or involvement in the [crime].’” Id. (quoting

United States v. Wilson, 960 F.3d 136, 144 (3d Cir.

2020)). “Such jurisdictional elements,” the court

stated, “‘normally have nothing to do with the wrongfulness of the defendant’s conduct’ and ‘do not describe

the evil Congress seeks to prevent.’” Id. (citation omitted). But in the court’s view, “[s]ubstantive elements”

are different—and “the Sixth Amendment vests ultimate authority to contest or concede” such elements

“with the accused.” Id. at 12a-13a & n.5.

The court of appeals “acknowledge[d] that [it was]

departing from the Second Circuit in holding that the

Sixth Amendment vests the accused with the ultimate

authority to decide whether to concede discrete elements of the charged offense.” Pet. App. 13a n.7 (citing

United States v. Rosemond, 958 F.3d 111, 122 (2d Cir.

2020)). The court explained that “[t]he Second Circuit

reached the contrary conclusion because McCoy only

considered ‘the charged crime,’ as a whole.” Id. (citation omitted). The court found the Second Circuit’s

“view incongruous with McCoy’s emphasis that ‘assert[ing] innocence[,]’ despite ‘overwhelming evidence[,]’ is an ‘objective of the defense’ and therefore

falls under the accused’s decision-making authority.”

Id. at 14a n.7 (quoting McCoy, 584 U.S. at 422) (alteration in original).

The court of appeals thus determined that “Walters

alone possessed ultimate authority to agree to the

Stipulation.” Pet. App. 13a. The court deemed “[t]he

elements involved”—“whether Walters was a felon

and knew he was a felon”—to be “substantive and not

like the jurisdictional elements in Wilson.” Id. Accordingly, the court of appeals held that “the District

Court correctly declined to accept the Stipulation as to

felon status and Walters’s knowledge of his felon status.” Id. at 14a.

Finally, the court of appeals concluded that the district court did not “commit[] reversible error by admitting Walters’s conviction history.” Pet. App. 14a. The

court observed that “the Supreme Court in Old Chief

v. United States[, 519 U.S. 172 (1997),] explained that

once the accused offers to stipulate that he is a felon,

it is an abuse of discretion to admit evidence of his conviction history solely to prove that he is a felon under

18 U.S.C. § 922(g)(1).” Id. But the court found that

“Old Chief d[oes] not apply” because “Walters’s counsel did not have the authority to enter the Stipulation.”

Id. at 14a-15a. As a result, the court of appeals ruled

that “the District Court did not abuse its discretion in

admitting the evidence.” Id. at 15a.1

REASONS FOR GRANTING THE PETITION

This case warrants the Court’s review. The Third Circuit’s decision below squarely conflicts with published decisions of the Second Circuit and Kentucky Supreme

Court. The question presented has frequently arisen following this Court’s decision in McCoy v. Louisiana, 584

U.S. 414 (2018), and its resolution turns on the meaning

of that decision. Only this Court can resolve the split of

1 The court of appeals also rejected Mr. Walters’s Second Amendment challenge to Section 922(g)(1). Pet. App. 16a-22a. Mr. Walters does not renew that challenge in this Court.

authority and provide guidance to the lower courts on the

proper understanding of McCoy. And review is particularly critical because the decision below is wrong. This

Court should grant the petition.

A. The Decision Below Creates A Conflict

Among Courts Of Appeals And State High

Courts

The decision below conflicts with published decisions of the Second Circuit and Kentucky Supreme

Court. It likewise conflicts with unpublished decisions

of the Sixth and Eleventh Circuits, as well as decisions

of numerous district courts and state intermediate appellate courts. This Court should grant certiorari to

resolve the conflict.

1. a. The Third Circuit’s decision below creates a

square conflict with the Second Circuit and Kentucky

Supreme Court. In United States v. Rosemond, 958

F.3d 111 (2d Cir. 2020), the Second Circuit “conclude[d] that the right to autonomy is not implicated

when defense counsel concedes one element of the

charged crime while maintaining that the defendant

is not guilty as charged.” Id. at 122. The court “h[e]ld

that McCoy is limited to a defendant’s right to maintain his innocence of the charged crimes.” Id. at 123.

Thus, the court reasoned that “when a lawyer makes

strategic concessions in pursuit of an acquittal, there

is no McCoy violation assuming, of course, the defendant’s objective was to maintain his non-guilt.” Id. at

122-23.

The Third Circuit here expressly “depart[ed] from

the Second Circuit.” Pet. App. 13a n.7. Unlike the

Second Circuit, the Third Circuit “h[e]ld[] that the

Sixth Amendment vests the accused with the ultimate

authority to decide whether to concede discrete elements of the charged offense.” Id. And it rejected the

Second Circuit’s “contrary conclusion” as “incongruous

with McCoy’s emphasis that ‘assert[ing] innocence’ . . .

is an ‘objective of the defense’ and therefore falls under

the accused’s decision-making authority.” Id. at 14a

n.7 (alteration in original).

The Third Circuit’s decision also conflicts with a decision of the Kentucky Supreme Court. In Epperson v.

Commonwealth, 645 S.W.3d 405 (Ky. 2021), the Kentucky Supreme Court held that McCoy does not

“appl[y] to a scenario in which an attorney concedes

guilt as to one or more elements of a crime, rather than

to the crime in toto.” Id. at 408. Because the government “must prove all elements of an offense beyond

reasonable doubt,” the court determined “that an attorney could concede guilt as to one or more elements

of an offense and yet remain within the bounds of their

client’s stated objective of pursuing actual innocence.”

Id. And the court emphasized that McCoy itself “distinguish[ed]” between “‘strategic disputes about

whether to concede an element of a charged offense’”

and “‘intractable disagreements about the fundamental objective of the defendant’s representation.’” Id. at

409 (quoting McCoy, 584 U.S. at 426).

b. In addition, the Third Circuit’s decision conflicts

with two unpublished decisions of federal courts of appeals and numerous decisions of federal district courts

and state intermediate appellate courts. In contrast,

the California Court of Appeal has reached the same

conclusion as the Third Circuit.

In Davis v. United States, No. 22-5920, 2023 WL

3294535 (6th Cir. Apr. 10, 2023), the Sixth Circuit held

that a defendant “did not establish a McCoy violation”

because his attorney “conceded only one essential element of the crime” over the defendant’s objection. Id.

at *3. Specifically, the defendant was charged with

“prostituting a minor”; and the attorney conceded only

that the defendant “procur[ed] a person for prostitution,” while “le[aving] intact his defense on another essential element of the crime, i.e., his lack of knowledge

that the victim was a minor.” Id.

Similarly, in Thompson v. United States, 826 F.

App’x 721 (11th Cir. 2020), the Eleventh Circuit held

that an attorney’s decision to concede that the defendant robbed an establishment while contesting only

“the interstate commerce element of Hobbs Act robbery” did not “rise to the level of admitting guilt” under

McCoy. Id. at 728. Instead, the court determined that

the decision to concede an element of the crime was “a

trial strategy” properly reserved for counsel, not the

defendant. Id.

Numerous federal district courts and state intermediate appellate courts have similarly held that

“counsel’s concession as to one essential element of a

crime does not constitute a concession of guilt under

McCoy.” United States v. Hamm, Nos. 23-cv-244, 16cr-85, 2024 WL 3329118, at *6 (E.D. Ky. Apr. 30,

2024), R. & R. adopted, 2024 WL 3220714 (E.D. Ky.

June 28, 2024); see, e.g., Perez Vasquez v. United

States, No. 15-cr-10338, 2023 WL 6541441, at *3 (D.

Mass. Oct. 6, 2023); Schaffer v. United States, No. 21cv-12815, 2023 WL 3199171, at *11 (D.N.J. May 1,

2023); Barker v. Vannoy, No. 21-cv-1997, 2022 WL

22879050, at *35 (E.D. La. Sept. 12, 2022), R. & R.

adopted, 2024 WL 4275242 (E.D. La. Sept. 24, 2024);

United States v. Chambers, No. 4:13-CR-20254, 2020

WL 2526116, at *14 (E.D. Mich. May 18, 2020); Christensen v. United States, Nos. 18-cv-8235, 14-cr-8164,

2020 WL 1672771, at *5 (D. Ariz. Apr. 6, 2020); Crump

v. Halvorson, No. 18-cv-1334, 2019 WL 3431787, at *2

(D. Minn. June 10, 2019); State v. Crump, 848 S.E.2d

501, 507-08 (N.C. Ct. App. 2020); In re Somerville, 14

Wash. App. 2d 1068, 2020 WL 6281524, at *4 (Wash.

Ct. App. Oct. 27, 2020).

Conversely, in People v. Flores, 246 Cal. Rptr. 3d 77

(Cal. Ct. App. 2019), the California Court of Appeal

found a Sixth Amendment violation where an attorney

“conced[ed] the actus reus” of the defendant’s charged

crime over the defendant’s objection. Id. at 85-86. The

court acknowledged that the concession “might have

been the only reasonable course given the considerable

evidence against [the defendant]” and may have given

the defendant “the best chance to achieve an acquittal.” Id. at 86. But the court believed that the only

relevant questions under McCoy were whether the defendant “expressed his objective to maintain innocence

of the alleged acts and whether counsel acted in accord

with that objective.” Id. This Court should grant certiorari to resolve the lower courts’ confusion about the

scope of McCoy.

B. The Question Presented Is Important To

Criminal Defendants And Defense Counsel

In McCoy, the dissenting Justices expressly recognized the importance of the question presented here.

The dissent observed that, following the majority’s decision, another “difficult” question “may arise more

frequently: When guilt is the sole issue for the jury, is

it ever permissible for counsel to make the unilateral

decision to concede an element of the offense charged?”

McCoy, 584 U.S. at 435 (Alito, J., dissenting). The dissent explained that “[s]ome criminal offenses contain

elements that the prosecution can easily prove beyond

any shadow of a doubt” and specifically cited a “prior

felony conviction” in a Section 922(g)(1) prosecution as

“a good example.” Id. at 436. “If the defendant insists

on contesting the conviction[] on frivolous grounds,”

the dissent questioned, “must counsel go along?” Id.

That is the question presented in this case—and

this case is no outlier. In the seven years since this

Court decided McCoy, lower courts have routinely confronted the question presented. See supra at 10-13

(citing numerous court of appeals, district court, and

state court cases). The frequently recurring nature of

that question is unsurprising because conceding an element is often a sound trial strategy.

In Section 922(g)(1) cases like this one, for instance, defense counsel regularly recommend that defendants stipulate to the prior felony conviction.2

2 Section 922(g)(1) cases in which defendants stipulate to a prior

felony conviction abound. See, e.g., Martinez-Armestica v. United

States, 468 F. Supp. 3d 470, 479 (D.P.R. 2020); United States v.

Montanez, No. 23-cr-186, 2024 WL 4582387, at *12 (E.D.N.Y. Oct.

25, 2024); United States v. Terry, No. 18-cr-24, 2022 WL 819200,

at *10 (W.D. Pa. Mar. 14, 2022); United States v. George, 597 F.

Supp. 3d 832, 841 (E.D.N.C. 2022); United States v. Emilien, No.

20-cr-26, 2021 WL 3206307, at *7 (E.D. La. July 29, 2021); United

States v. Smith, No. 24-cr-406, 2025 WL 1256770, at *1 (N.D.

Ohio Apr. 30, 2025); United States v. Breedlove, No. 21-cr-00320,

2023 WL 3143424, at *2 (S.D. Ind. Apr. 28, 2023); United States

v. Dat, No. 22-cr-147, 2024 WL 3851148, at *2 (D. Neb. Aug. 15,

2024); United States v. Goldtooth, No. 19-cr-08108, 2020 WL

6048319, at *2 (D. Ariz. Oct. 13, 2020); United States v. Grant,

No. 20-cr-058, 2020 WL 7398780, at *2 (D. Colo. Dec. 17, 2020);

After all, as this Court explained in Old Chief v.

United States, 519 U.S. 172 (1997), “there can be no

question that evidence of the name or nature of the

prior offense” in a Section 922(g)(1) prosecution “generally carries a risk of unfair prejudice to the defendant.” Id. at 185. Whenever a defendant refuses to follow defense counsel’s recommendation to stipulate to

the prior felony conviction, the question presented

here will arise. That will be a relatively common occurrence because Section 922(g)(1) offenses are ubiquitous: they are the second most common federal

crime—with 6,707 convictions (approximately 11% of

all federal convictions) in FY 2024.3

This Court should answer the question presented

now to provide much-needed guidance to criminal defendants, defense counsel, and trial courts—particularly because the current confusion among lower

courts stems from competing interpretations of this

Court’s own decision in McCoy.

C. The Decision Below Is Incorrect

Review is also warranted because the decision below is incorrect. Defense counsel may concede an offense element over a defendant’s objection when doing

so is reasonably designed to obtain an acquittal.

United States v. Green, No. 21-cr-159, 2022 WL 2276357, at *4

(S.D. Ga. June 23, 2022); United States v. Jackson, No. 21-cr-12,

2021 WL 5711941, at *2 (D.D.C. Dec. 2, 2021).

3 Of the 61,678 federal convictions reported in 2024, 7,419 involved Section 922(g); in turn, 90.4% of Section 922(g) convictions

arose under subsection (g)(1) because the defendant had a prior

felony conviction. See U.S. Sentencing Commission, Quick Facts:

U.S.C.

§ 922(g)

Firearms

Offenses

(2024),

https://perma.cc/6243-EUWM.

McCoy itself supports that conclusion. And this

Court’s larger body of Sixth Amendment precedent

confirms the point.

1. In McCoy, this Court held that the Sixth Amendment grants a defendant “the right to insist that counsel refrain from admitting guilt” to the charged offense. 584 U.S. at 417. There, defense counsel “reasonably assess[ed] a concession of guilt as best suited

to avoiding the death penalty.” Id. at 422. But the

defendant voiced an “intransigent objection” to admitting “guilt of [the] charged crime.” Id. at 426. The

Court concluded that, in the face of that conflict, “counsel may not admit her client’s guilt” against the client’s

wishes. Id.

In so concluding, the Court recognized that “the

lawyer’s province” includes deciding “‘what arguments

to pursue, what evidentiary objections to raise, and

what agreements to conclude regarding the admission

of evidence.’” McCoy, 584 U.S. at 422 (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)). At the

same time, the Court emphasized that some decisions

“are reserved for the client,” such as “whether to plead

guilty, waive the right to a jury trial, testify in one’s

own behalf, and forgo an appeal.” Id.

The Court determined that deciding “that the objective of the defense is to assert innocence belongs in

this latter category.” McCoy, 584 U.S. at 422. The

Court explained that such a decision is not “about how

best to achieve a client’s objectives,” but is instead

“about what the client’s objectives in fact are.” Id.

Specifically, a defendant “may wish to avoid . . . the

opprobrium that comes with admitting” that he committed a crime. Id. at 423. And the Court expressly

distinguished “strategic disputes about whether to

concede an element of a charged offense” from “intractable disagreements about the fundamental objective

of the defendant’s representation.” Id. at 426.

This case falls on the opposite side of the line articulated in McCoy. Here, the disagreement between Mr.

Walters and his attorney did not turn on whether to

admit “guilt of a charged crime.” Id. Mr. Walters

wished to seek an acquittal, and his counsel never

questioned that objective. Instead, the disagreement

turned only on whether to concede particular elements

of the charged Section 922(g)(1) offense—namely, that

Mr. Walters had a prior felony conviction and knew

that he was a felon. Pet. App. 4a. That dispute was

“strategic” in character. McCoy, 584 U.S. at 426. Mr.

Walters’s counsel recognized that a concession would

“sanitize the information regarding the conviction”

and preclude the government from introducing prejudicial evidence. Pet. App. 26a; see Old Chief, 519 U.S.

at 191-92. In contrast, Mr. Walters’s preferred approach would allow the jury to “hear the details of [his]

prior convictions unnecessarily.” Pet. App. 26a. As

McCoy explains, such a disagreement over “whether to

concede an element of a charged offense” is a “strategic

dispute[]” about how best to achieve the client’s desired result of acquittal—not a dispute “about the fundamental objective of the defendant’s representation.”

584 U.S. at 426.

This Court’s larger body of Sixth Amendment precedent reinforces the point. “[W]hen a defendant

chooses to have a lawyer manage and present his

case,” he cedes “the power to make binding decisions

of trial strategy in many areas.” Faretta v. California,

422 U.S. 806, 820 (1975). The Court has thus recognized that counsel has primary responsibility for

“many decisions pertaining to the conduct of the trial,”

including “what arguments to pursue” and “what

agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U.S. 242, 248

(2008) (quoting New York v. Hill, 528 U.S. 110, 114-15

(2000)). Choosing to concede one element of a crime is

equivalent to choosing to forgo one “argument[],” id.—

e.g., that the defendant did not know he was a felon—

and to prioritize another—e.g., that the defendant did

not possess a gun. And in many Section 922(g)(1)

cases, the concession will also involve an “agreement[]” “regarding the admission of evidence,” id.—

e.g., stipulating to a prior felony conviction in exchange for the government agreeing not to introduce

evidence of that and other convictions. These strategic

decisions are quintessential “[t]rial management”

matters that fall within “the lawyer’s province.”

McCoy, 584 U.S. at 422.

This Court’s holdings in the context of appellate

representation support the same conclusion. The

Court has held that while an indigent defendant may

compel counsel to “make certain fundamental decisions regarding the case,” there is no “constitutional

right to compel appointed [appellate] counsel to press

nonfrivolous points requested by the client, if counsel,

as a matter of professional judgment, decides not to

present those points.” Jones v. Barnes, 463 U.S. 745,

751 (1983). The Court explained that “[e]xperienced

advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if

possible.” Id. It would therefore “disserve the very

goal of vigorous and effective advocacy” to “impose on

appointed counsel a duty to raise every ‘colorable’

claim suggested by a client.” Id. at 754. While counsel

and his client may share an objective of prevailing on

appeal, the tactical decision of “selecting the most

promising issues for review” belongs to the advocate,

id. at 752—just like the tactical decision of selecting

which elements of a conviction to contest at trial.

This Court’s decisions in the related context of ineffective assistance of counsel are likewise in accord.

For instance, the Court has held that trial counsel’s

performance was not deficient where he “confess[ed]

[his] client’s shortcomings” to “buil[d] credibility with

the jury and persuade[] it to focus on the relevant issues in the case.” Yarborough v. Gentry, 540 U.S. 1, 9

(2003) (per curiam). “This is precisely the sort of calculated risk,” the Court emphasized, “that lies at the

heart of an advocate’s discretion.” Id. The same is

true of the decision to concede an element—and thus

prevent the admission of prejudicial evidence concerning that element—in order to “focus on” contesting

other elements. Id.4

2. The court of appeals’ holding lacks merit. The

court saw “no reason to read McCoy to require the accused to adopt an all or nothing approach—contest all

elements or lose the right to contest any.” Pet. App.

4 Similarly, courts of appeals have routinely held that counsel’s

decision to “conced[e] guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is

a valid trial strategy.” United States v. Holman, 314 F.3d 837,

840 (7th Cir. 2002); see, e.g., Darden v. United States, 708 F.3d

1225, 1229-30 (11th Cir. 2013); United States v. Jones, 482 F.3d

60, 76-77 (2d Cir. 2006).

11a. But that reasoning misses McCoy’s core distinction between “strategic choices about how best to

achieve a client’s objectives” and “choices about what

the client’s objectives in fact are.” 584 U.S. at 422. In

the context of a trial, the client’s “objective” is either

seeking an acquittal or pleading guilty. That is the

level of generality at which this Court has defined a

client’s “objectives”—for instance, it has listed

“whether to plead guilty,” whether to “waive the right

to a jury trial,” and whether to “forgo an appeal” as

quintessential objectives “reserved for the client” to

determine. Id. This Court has never framed an objective at the much lower level of generality—“contest[ing] a[n] element[]”—posited by the court of appeals. Pet. App. 11a. “[A]llowing defendants to define

their objectives [that] specifically” “would leave little

remaining in the . . . category” of “tactics” reserved for

defense counsel. United States v. Roof, 10 F.4th 314,

353 (4th Cir. 2021).

In fact, the court of appeals’ logic would seem to apply to any concession made by defense counsel at trial.

Under the court’s reasoning, just as a defendant

should not “lose the right to contest” any element, he

should not lose the right to contest any argument

made by the government. Pet. App. 11a. And yet it is

well established that decisions about “what arguments

to pursue” fall within the attorney’s bailiwick. Gonzalez, 553 U.S. at 248 (citation omitted); see Jones, 463

U.S. at 751.

The court of appeals observed that “acquittal is just

as mandatory when the government fails to prove one

element as when it fails to prove them all.” Pet. App.

11a. But that observation ignores that sometimes (as

here) conceding an element can increase the likelihood

of acquittal—for instance, by shielding prejudicial evidence from the jury. That simply illustrates why concessions of elements must be classified as “strategic

choices,” rather than “objectives” unto themselves.

McCoy, 584 U.S. at 422.

The court of appeals undermined its own holding

by recognizing an “exception to [its] general rule” for

concessions of “jurisdictional element[s].” Pet. App.

12a. The court sought to justify that exception on the

ground that concessions of “jurisdictional element[s]

d[o] not trigger . . . ‘opprobrium’ or ‘stigma’” in the

same way as concessions of “substantive elements.”

Id. But that opprobrium-based distinction is untethered from the line drawn by this Court’s precedents

between “strategic choices about how best to achieve a

client’s objectives” and “what the client’s objectives in

fact are.” McCoy, 548 U.S. at 422. In any event, the

Third Circuit’s opprobrium-based rationale does not

withstand scrutiny. Many concessions of substantive

elements do not trigger “opprobrium.” In a Section

922(g)(1) offense, for example, one element is the possession of a firearm—which is generally constitutionally protected conduct, not a “wrongful[]” act. Pet.

App. 12a (citation omitted). Nonetheless, the Third

Circuit would distinguish between a concession of that

element (reserved to the defendant) and a concession

of a jurisdictional element (reserved to the attorney).

No sound basis justifies that distinction.

Nor is the court of appeals’ distinction between “jurisdictional element[s]” and “substantive elements”

self-defining. Pet. App. 12a-13a & n.5. Those terms

have no settled meaning under federal law. The Third

Circuit’s regime thus disregards the “importan[ce]” of

“having clear lines” in this area, as “defense counsel

must walk a thin line between violating McCoy, on the

one hand, and committing ineffective assistance of

counsel, on the other.” Mason v. Matteson, No. 2200661, 2025 WL 1932388, at *15 (C.D. Cal. Mar. 31,

2025), R. & R. adopted, 2025 WL 1927978 (C.D. Cal.

July 11, 2025). Accordingly, this Court should grant

certiorari, reject the Third Circuit’s rule, and reaffirm

the distinction it already drew in McCoy between

“strategic disputes about whether to concede an element of a charged offense” and “intractable disagreements about the fundamental objective of the defendant’s representation.” 584 U.S. at 426.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

EPHRAIM A. MCDOWELL

Counsel of Record

ALEXANDER J. KASNER

ELIAS S. KIM

COOLEY LLP

1299 Pennsylvania Ave.,

N.W., Suite 700

Washington, DC 20004

(202) 842-7800

emcdowell@cooley.com

Counsel for Petitioner

December 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Appendix A:

Opinion, 3d Cir. No. 22-1812, Sept. 4,

2025 ................................................................. 1a

Appendix B:

Order, D.N.J. No. 1:19-CR-176-1, July 2 & 7,

2021 ............................................................... 23a

APPENDIX A

————

UNITED STATES OF AMERICA,

RAYMON WALTERS, Appellant

————

No. 22-1812

Argued: February 27, 2025

Filed: September 4, 2025

————

On Appeal from the United States District Court for

the District of New Jersey (D.C. Criminal No. 1:19-cr00176-001), District Judge: Honorable Robert B.

Kugler

Attorneys and Law Firms

Richard Coughlin [ARGUED], Law Office of Caroline

Goldner Cinquanto, 3331 Street Road, 2 Greenwood

Square, Suite 450, Bensalem, PA 19020, Counsel for

Appellant Raymon Walters

Mark E. Coyne, John F. Romano [ARGUED], Office

of United States Attorney, 970 Broad Street, Room

700, Newark, NJ 07102, Counsel for Appellee United

States of America

Before: RESTREPO, MONTGOMERY-REEVES and

AMBRO, Circuit Judges.

OPINION OF THE COURT

MONTGOMERY-REEVES, Circuit Judge.

Woven into the Nation’s fabric are the guarantees

of life and liberty. The Sixth Amendment helps

safeguard these guarantees by, among other things,

providing a criminal defendant the “Assistance of

Counsel for his defence.” U.S. CONST. amend. VI.

“Assistance” is the key to the right, and the Supreme

Court consistently reminds us that the accused need

not always defer to counsel. Nonetheless, over the

last century, the Supreme Court has steadily expanded the role that counsel plays in criminal trials. In

this appeal, we must test the boundaries of this

expansion in the context of counsel’s ability to enter

stipulations that concede elements of the charged

offense. We hold that the accused decides whether to

concede elements of the charged offense that are

substantive or relate to the accused’s criminal behavior. And even if the accused’s decision stands in

stark contrast to counsel’s professional judgment, the

Sixth Amendment requires that counsel honor the

decision. Thus, the District Court correctly held that

defense counsel could not enter a stipulation that

conceded substantive elements of the charged offense

over the accused’s objection, and it did not err in

admitting the government’s proffered evidence, which

was necessary to prove those substantive elements.

We also must determine whether it was plainly

unconstitutional to convict Appellant Raymon

Walters of unlawfully possessing a firearm as a felon.

We hold that 18 U.S.C. § 922(g)(1) is not clearly

unconstitutional as applied to Walters, an individual

with numerous interactions with law enforcement

since reaching the age of majority, including convict-

ions for drug distribution. Thus, we will affirm the

District Court’s judgment of conviction.

I. BACKGROUND

Walters is no stranger to law enforcement. In 2005,

at 19 years old, Walters was convicted of disorderly

conduct. Every year afterward until 2013, Walters

was arrested, convicted, or incarcerated. In fact,

Walters had racked up nine criminal convictions by

that time; three of those convictions were for drug

distribution; and he was sentenced to two multipleyear stints of imprisonment for two separate convictions.

Walters next encountered law enforcement in 2018

when Camden police officers received a call that a

man brandished a firearm at an unknown victim.

After arriving on the scene, two officers spotted

Walters, approached him, and started a conversation.

But soon after the conversation began, Walters took

off running. The officers chased Walters, and during

the chase, one officer saw Walters discard a handgun.

Ultimately, the officers arrested Walters and transported him to the police station. During the transport, Walters made various statements about the

officers catching him with his “strap,” which is

shorthand for a handgun.

Walters was indicted for unlawful possession of a

firearm by a felon under 18 U.S.C. § 922(g)(1). He

exercised his right to a jury trial and pleaded not

guilty. During the discovery process, the government

presented him with a stipulation (the “Stipulation”),

which provided:

Prior to May 21, 2018, the defendant,

Raymon Walters, was convicted of a crime

punishable by imprisonment for a term

exceeding one year, in a court in the State of

New Jersey, and on May 21, 2018, Raymon

Walters knew that he had been so convicted

and that the conviction exposed him to a

term of imprisonment exceeding one year.

Supplemental Appendix at 1. Walters instructed his

counsel not to sign the Stipulation.

At the pretrial conference, Walters’s counsel

informed the District Court that he “ha[d] spoken to

Mr. Walters a number of times” and Walters “d[id]

not want . . . to stipulate to the contents of the . . .

[S]tipulation. [Walters] made that very clear.”

Appendix 317 (hereinafter “App. __”). But Walters’s

counsel planned to sign the Stipulation despite his

client’s objection because, as the attorney, he thought

he could unilaterally enter stipulations on behalf of

his client.

Initially, the government stated that it would

accept the Stipulation, but upon reflection, changed

its position. It was “concerned that a defense attorney

[was] overriding a defendant’s desire to not enter the

[S]tipulation, which includes a statement about his

mental state that he knew that he was in the

category of defendants who were not allowed to have

a gun.” App. 325 The District Court agreed with the

government and did not allow Walters’s counsel to

sign the Stipulation over Walters’s objection. The

District Court then allowed the government to

introduce Walters’s two 2011 drug-related convictions

and jail records into evidence. 1 After a two-day jury

In a passing footnote reference, Walters contends that

introducing certain jail records violated the District Court’s

motion in limine ruling. The issue was not preserved below or

on appeal. See John Wyeth & Brother Ltd. v. CIGNA Int’l Corp.,

119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments raised in

trial and less than an hour of deliberations, the jury

returned a guilty verdict. The District Court

sentenced Walters to 82 months’ imprisonment. He

timely appealed.

II. JURISDICTION AND STANDARDS OF

REVIEW

The District Court had jurisdiction under 18 U.S.C.

§ 3231, and we have jurisdiction under 28 U.S.C.

§ 1291. As for Walters’s challenge to the introduction

of prior conviction evidence, we review the District

Court’s order “for abuse of discretion.” United States

v. Gallman, 57 F.4th 122, 126 (3d Cir. 2023) (citing

United States v. Starnes, 583 F.3d 196, 213–14

(3d Cir. 2009)). We review Walters’s Second

Amendment challenge, which he did not raise before

the District Court, for plain error under Federal Rule

of Criminal Procedure 52(b).

III. DISCUSSION

Walters challenges his judgment of conviction in

two ways. First, he argues that the District Court

abused its discretion by admitting his prior

conviction history despite counsel’s offer to stipulate

that he was a felon and knew that he was a felon at

the time of the crime. 2 Second, Walters argues that

passing (such as, in a footnote), but not squarely argued, are

considered [forfeited].” (citing Pennsylvania v. HHS, 101 F.3d

939, 945 (3d Cir. 1996))). Therefore, we will not assess whether

Walters’s prior convictions were admitted in error.

2 While

it does not affect our review, we note this case’s

unusual posture. Although the District Court disregarded the

desire of Walters’s counsel to sign the Stipulation in favor of

Walters’s own choice not to sign, Walters now argues that the

District Court should not have listened to him and should have

allowed his trial counsel to override his preference.

his conviction was unconstitutional because 18 U.S.C.

§ 922(g)(1), as applied to him, violates the Second

Amendment. In response, the government argues

that the Stipulation, if entered, would have been

invalid because counsel was not permitted to enter it

over Walters’s express objection. And the government

argues that it is not plain that § 922(g)(1) was

unconstitutionally applied to Walters.

To determine whether to affirm Walters’s judgment

of conviction, we will first analyze whether counsel

had the authority to enter the Stipulation and

whether the District Court abused its discretion by

admitting Walters’s prior conviction history. Second,

we will address whether § 922(g)(1) was

constitutionally applied to Walters.

A. Stipulations Regarding the Accused

To determine whether the District Court erred in

failing to accept the Stipulation, we examine who—

counsel or the accused—had the final say over

entering the Stipulation that conceded two elements

of the charge against Walters—felon status and

mens rea. To answer this question, we first delineate

the various trial responsibilities that are delegated

between trial counsel and the accused. Second, we

determine whether stipulating to elements of the

charged offense falls within the authority given to

counsel. Third, we discuss whether the District Court

abused its discretion by admitting evidence of

Walters’s prior convictions.

1. Trial responsibilities of counsel and

the accused

The Sixth Amendment in the Bill of Rights

guarantees that “the accused shall enjoy the right . . .

to have the Assistance of Counsel for his defence.”

U.S. CONST. amend. VI. But from English common

law to the Founding, “even where counsel was

permitted, the general practice . . . [was] selfrepresentation.” Faretta v. California, 422 U.S. 806,

828, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Counsel’s

assistance was limited to cross-examination and

answering legal questions; issues of fact were

reserved solely for the accused. See, e.g., Erica J.

Hashimoto, Resurrecting Autonomy: The Criminal

Defendant’s Right to Control the Case, 90 B.U. L. Rev.

1147, 1167 (2010); William M. Beaney, The Right to

Counsel in American Courts 21–22, 24–25 (1955).

Over time, the general practice shifted, and defense

counsel gained more trial responsibilities. In the

20th century, the Supreme Court recognized that

“[t]he right to counsel is a fundamental right of

criminal defendants[ ] [which] assures the fairness,

and thus the legitimacy, of our adversary process,”

Kimmelman v. Morrison, 477 U.S. 365, 374, 106

S.Ct. 2574, 91 L.Ed.2d 305 (1986) (citing Gideon

v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792,

9 L.Ed.2d 799 (1963)), and that “there is as much

necessity for counsel to investigate matters of fact, as

points of law, if truth is to be discovered,” Powell v.

Alabama, 287 U.S. 45, 63 n.1, 53 S.Ct. 55, 77 L.Ed.

158 (1932) (quoting 2 Z. Swift, A System of the Laws

of the State of Connecticut 398–99 (1796)). See also

Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98

L.Ed.2d 798 (1988) (“[T]he lawyer has—and must

have—full authority to manage the conduct of the

trial” because “[t]he adversary process could not

function effectively if every tactical decision

require[s] [the accused’s] approval.”).

As counsel’s role expanded, courts sought to strike

a harmonious balance between the accused’s auto-

nomy over his defense and counsel’s ability to

effectively achieve the accused’s desired outcome. To

achieve this balance, the Supreme Court delegated

strategic decisions to lawyers. McCoy v. Louisiana,

584 U.S. 414, 422, 138 S.Ct. 1500, 200 L.Ed.2d 821

(2018). And it reserved defense objectives for the

accused. Id. at 417, 138 S.Ct. 1500 (“[I]t is the

defendant’s prerogative . . . to decide on the objective

of his defense.”). But these designations naturally

lead to two questions: (1) what is a strategy, and

(2) what is an objective? The Supreme Court has

provided guidance.

Strategic decisions might include “what arguments

to pursue, what evidentiary objections to raise,

and what agreements to conclude regarding the

admission of evidence.” Id. at 422, 138 S.Ct. 1500

(quoting Gonzalez v. United States, 553 U.S. 242, 248,

128 S.Ct. 1765, 170 L.Ed.2d 616 (2008)). This is not

an exhaustive list, however. “Among the decisions

that counsel is free to make unilaterally are the

following: choosing the basic line of defense, moving

to suppress evidence, delivering an opening statement and deciding what to say in the opening,

objecting to the admission of evidence, cross-examining witnesses, offering evidence and calling defense

witnesses, and deciding what to say in summation.”

Id. at 436, 138 S.Ct. 1500 (Alito, J., dissenting) (citing

New York v. Hill, 528 U.S. 110, 114–15, 120 S.Ct.

659, 145 L.Ed.2d 560 (2000)). Likewise, counsel can

control scheduling determinations, Hill, 528 U.S. at

115, 120 S.Ct. 659, permit a magistrate judge to

preside over jury selection, Gonzalez, 553 U.S. at 250,

128 S.Ct. 1765, and decide what arguments to

advance on appeal, Garza v. Idaho, 586 U.S. 232,

240, 139 S.Ct. 738, 203 L.Ed.2d 77 (2019) (citations

omitted). In essence, the method of presenting the

defense belongs to counsel. 3

“Objectives” might include “whether to plead

guilty, waive the right to a jury trial, testify in one’s

own behalf, and forgo an appeal.” McCoy, 584 U.S.

at 422, 138 S.Ct. 1500 (citing Jones v. Barnes, 463

U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)).

Circuit courts have also reserved waiver of the

Sixth Amendment right to confront witnesses for the

accused. See United States v. Stephens, 609 F.2d 230,

232–33 (5th Cir. 1980) (“[C]ounsel in a criminal case

may waive his client’s Sixth Amendment right of

confrontation by stipulating to the admission of

evidence,” but only if “the defendant does not dissent

from his attorney’s decision, and so long as it can be

said that the attorney’s decision was a legitimate

trial tactic or part of a prudent trial strategy.”). 4

Most recently, in 2018, the Supreme Court added

another objective to the list—whether to maintain

innocence or concede guilt. McCoy, 584 U.S. at 423,

138 S.Ct. 1500. In McCoy v. Louisiana, the Supreme

Court considered whether the trial court violated the

Sixth Amendment by allowing McCoy’s counsel to tell

the jury—over McCoy’s “vociferous[ ]” objection—that

McCoy “committed three murders” during the guilt

phase of a capital murder trial. Id., 584 U.S. at 417,

3 While these decisions belong to counsel, counsel still has a

duty to consult his client of “important decisions.” Strickland v.

Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).

also Janosky v. St. Amand, 594 F.3d 39, 48 (1st Cir.

2010); United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999);

United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001);

United States v. Gamba, 541 F.3d 895, 900–01 (9th Cir. 2008);

United States v. Aptt, 354 F.3d 1269, 1282 (10th Cir. 2004).

4 See

10a

138 S.Ct. 1500. The Supreme Court held that McCoy

had the right to prohibit counsel from admitting

guilt, even though counsel thought confessing guilt

provided McCoy the best chance to avoid the death

penalty. Id. at 424, 138 S.Ct. 1500.

With individual liberty—and, in capital

cases, life—at stake, it is the defendant’s

prerogative, not counsel’s, to decide on the

objective of his defense: to admit guilt in the

hope of gaining mercy at the sentencing

stage, or to maintain his innocence, leaving

it to the State to prove his guilt beyond a

reasonable doubt.

Id. at 417–18, 138 S.Ct. 1500. In coming to its

conclusion, the Supreme Court sifted through the

trial roles delegated to counsel and those reserved for

the accused and concluded that the decision to

concede all elements of the charged offense is an

objective that resides with the accused. Id. at 422–24,

138 S.Ct. 1500. Thus, the decision “to maintain

innocence of the charged criminal acts” is a trial

“objective” and counsel “may not override [that

authority] by conceding guilt.” Id. at 423, 138 S.Ct.

1500.

2. Decision-making authority to stipulate to individual elements of the

charged offense

But what happens when counsel wants to concede

some elements and not others? Here, we must decide

whether the accused has the autonomy to maintain

his innocence of individual elements to a charged

offense; or, conversely, whether the defendant’s

choice is all-or-nothing—contest all elements or none.

We hold that a defendant has ultimate authority to

11a

decide whether to contest individual elements, except

for certain narrowly defined jurisdictional elements

described below.

Our holding follows naturally from the fact that the

government bears the burden of proving “every

element of the charged offense” beyond a reasonable

doubt. Carella v. California, 491 U.S. 263, 265, 109

S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam)

(emphasis added) (citing In re Winship, 397 U.S. 358,

364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)); see

also Clark v. Arizona, 548 U.S. 735, 766, 126 S.Ct.

2709, 165 L.Ed.2d 842 (2006) (holding that “the

presumption of innocence” as to “mens rea (and every

other element)” can only be “overcome” by “proof

beyond a reasonable doubt”). If the government does

not meet its burden of proof on each individual

element, the accused must be acquitted. See In re

Winship, 397 U.S. at 364, 90 S.Ct. 1068 (explaining

that a conviction is impossible without “proof beyond

a reasonable doubt of every fact necessary to

constitute the crime with which he is charged”

(emphasis added)). We recognize that in McCoy the

accused asserted his innocence by contesting every

element of the charged offenses. 584 U.S. at 426, 138

S.Ct. 1500. And in that context, the Supreme Court

reasoned that maintaining innocence and avoiding

the “opprobrium” that comes with admitting certain

criminal actions, is an objective of the accused. Id. at

423, 138 S.Ct. 1500. But we see no reason to read

McCoy to require the accused to adopt an all or

nothing approach—contest all elements or lose the

right to contest any. After all, acquittal is just as

mandatory when the government fails to prove one

element as when it fails to prove them all. See, e.g.,

Clark, 548 U.S. at 766, 126 S.Ct. 2709 (explaining

that the presumption of innocence means that

12a

“a defendant is innocent unless and until the

government proves beyond a reasonable doubt each

element of the offense charged” (citations omitted)).

Thus, the right of the accused “to maintain innocence

of the charged criminal acts” as an objective will

generally include the right to contest discrete

elements of the crime. McCoy, 584 U.S. at 423, 138

S.Ct. 1500 (citing U.S. CONST. amend. VI).

We have articulated one narrow exception to this

general rule. In United States v. Wilson, we stated

that the accused did not have ultimate authority to

stipulate to a jurisdictional element—whether bank

robberies occurred at federally insured banks—that

had nothing to do with the defendants’ “conduct,

mental states, or involvement in the robberies.” 960

F.3d 136, 144 (3d Cir. 2020). Furthermore, Wilson

reasoned that the jurisdictional element did not

trigger the “ ‘opprobrium’ or stigma” that were

attendant in McCoy. Id. (quoting McCoy, 584 U.S. at

423, 138 S.Ct. 1500). Such jurisdictional elements

“normally have nothing to do with the wrongfulness

of the defendant’s conduct” and “do not describe the

‘evil Congress seeks to prevent.’ ” Rehaif v. United

States, 588 U.S. 225, 230, 139 S.Ct. 2191, 204

L.Ed.2d 594 (2019) (quoting Torres v. Lynch, 578 U.S.

452, 467, 136 S.Ct. 1619, 194 L.Ed.2d 737 (2016)).

Instead, they are only relevant because they allow

federal law enforcement to investigate the crime,

federal prosecutors to charge the defendant with the

crime, and federal courts to preside over the criminal

trial. These limited jurisdictional elements do not

bear the same relationship to a defendant’s “charged

criminal acts” as the substantive elements 5 consid5 Substantive elements of a crime are inherently tied to “the

evil Congress seeks to prevent” because they “primarily define[ ]

13a

ered in McCoy or as jurisdictional elements that

relate to the accused’s behavior. Wilson, 960 F.3d

at 143 (quoting McCoy, 584 U.S. at 423, 138 S.Ct.

1500). 6 As a result, the decision whether to litigate

these “technical [and] tactical” jurisdictional elements rests with counsel. Id. at 144. But the Sixth

Amendment vests ultimate authority to contest or

concede any other element of the crime with the

accused.

Taking McCoy, Carella, and Wilson together, our

holding comes into focus. Walters alone possessed

ultimate authority to agree to the Stipulation. The

elements involved—whether Walters was a felon and

knew he was a felon—were substantive and not like

the jurisdictional elements in Wilson. Cf. Rehaif, 588

U.S. at 237, 139 S.Ct. 2191. Indeed, both elements

either concerned Walters’s prior conduct or his mens

rea with respect to the charged offense. Walters could

not have been guilty if the government did not prove

both beyond a reasonable doubt. Walters thus was

entitled to maintain his innocence by contesting

these elements and forcing the government to

shoulder its burden of proof. 7 Given Walters’s

the behavior that the statute calls a ‘violation’ of federal law.”

Torres, 578 U.S. at 457, 467, 136 S.Ct. 1619.

6 Additionally, the Supreme Court often treats jurisdictional

elements and substantive elements of a crime differently. See,

e.g., Torres, 578 U.S. at 457, 136 S.Ct. 1619 (explaining that the

jurisdictional elements are unlike substantive elements).

7 Although

not raised by either party, we acknowledge that

we are departing from the Second Circuit in holding that the

Sixth Amendment vests the accused with the ultimate authority

to decide whether to concede discrete elements of the charged

offense. See United States v. Rosemond, 958 F.3d 111, 122 (2d

Cir. 2020). The Second Circuit reached the contrary conclusion

because McCoy only considered “the charged crime,” as a whole.

14a

objection, the District Court correctly declined to

accept the Stipulation as to felon status and

Walters’s knowledge of his felon status.

3. Walters’s prior conviction evidence

The next question we must answer is whether the

District Court committed reversible error by admitting Walters’s conviction history. It did not.

In its landmark 1997 decision, the Supreme Court

in Old Chief v. United States explained that once the

accused offers to stipulate that he is a felon, it is an

abuse of discretion to admit evidence of his conviction

history solely to prove that he is a felon under

18 U.S.C. § 922(g)(1). 519 U.S. 172, 191–92, 117 S.Ct.

644, 136 L.Ed.2d 574 (1997). In 2019, in another

landmark decision, Rehaif, the Supreme Court

clarified the elements of an 18 U.S.C. § 922(g)(1)

conviction and required the government to prove that

the defendant knew that he belonged to a class of

individuals prohibited from possessing a firearm—

there an unlawful alien, here a felon. 8 Rehaif, 588

U.S. at 227, 139 S.Ct. 2191.

As discussed above, Walters’s counsel did not have

the authority to enter the Stipulation because

Walters did not agree to stipulate to his felony status

Id. For the reasons stated above, we find such a view incongruous with McCoy’s emphasis that “assert[ing] innocence[,]”

despite “overwhelming evidence[,]” is an “objective of the

defense” and therefore falls under the accused’s decision-making

authority. McCoy, 584 U.S. at 422, 138 S.Ct. 1500. And we fail

to see why counsel conceding critical elements of charged

offenses does not violate an accused’s Sixth Amendment right.

8 18

U.S.C. § 922(g)(1) defines a felon as someone who is

convicted of a crime that carries a punishment of more than one

year of imprisonment.

15a

or mens rea. As a result, Old Chief did not apply, and

the District Court did not abuse its discretion in

admitting the evidence. See Old Chief, 519 U.S. at

191–92, 117 S.Ct. 644 (explaining that the holding

applies when a defendant offers to stipulate to felon

status). The same is true for Rehaif. When the

accused declines to stipulate to his knowledge that he

is a felon, the District Court does not abuse its

discretion by allowing the government to introduce

evidence of the accused’s conviction history.

Walters expresses concern that “evidence of the

nature of the prior convictions carrie[s] an inherent

risk of unfair prejudice.” Walters Supplemental

Opening Br. 16. True, but this risk, and whether the

probative value of the evidence outweighs it, is

addressed by Federal Rule of Evidence 403. And

district courts have always functioned as gatekeepers, deciding what information may be presented

to the jury following a Rule 403 objection. They are

exceedingly adept at knowing when and how to

exclude or limit the admission of evidence that is,

among other things, unfairly prejudicial, needlessly

cumulative, or likely to cause confusion, following a

motion in limine or evidentiary objection. Fed. R.

Evid. 403. 9 That function was not abrogated by the

9 The

ultimate admission of the evidence is highly contextualized and will depend on the facts and circumstances of each

case, any evidentiary objections, and a district court’s determination of whether the prejudicial effect of its admission

“substantially” outweighs the probative value of the evidence.

For example, a district court might admit evidence of four

convictions without identifying the particular crimes. Similarly,

a district court might admit evidence that an accused served

a sentence exceeding one year without identifying the exact

duration. Again, these are the types of decisions that district

16a

Supreme Court’s decision in Old Chief. We therefore

trust that district courts will continue to perform

their careful gatekeeping function and use Old Chief

as a guide when confronted with similar situations.

In summary, the District Court did not abuse its

discretion when it admitted evidence of Walters’s

prior convictions. There was no valid Stipulation. So

Walters’s conviction history was admissible to prove

Walters’s felon status and knowledge of the same.

B. Section 922(g)(1)

For the first time on appeal, Walters argues that

18 U.S.C. § 922(g)(1) violates his Second Amendment

right to bear arms. U.S. CONST. amend. II. At oral

argument, counsel conceded that we review Walters’s

conviction for plain error. United States v. Olano, 507

U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508

(1993). To prevail under the plain-error framework,

Walters must set forth “(1) a legal error (2) that is

plain and (3) that has affected his substantial rights.”

United States v. Dorsey, 105 F.4th 526, 528 (3d Cir.

2024) (citing Olano, 507 U.S. at 732–33, 113 S.Ct.

1770). After investigating the first three prongs, we

inquire whether the error “seriously affects the

fairness, integrity, or reputation of judicial proceedings.” Id. (citing Olano, 507 U.S. at 734, 113

S.Ct. 1770). At the crux of plain error review is

whether the error is “clear or obvious, rather than

subject to reasonable dispute” under existing law. Id.

at 529 (quotation omitted).

Walters argues that recent case law reveals the

District Court’s clear and obvious error in this case.

courts routinely make, and we trust them to continue to provide

this necessary function.

17a

According to Walters, United States v. Rahimi, 602

U.S. 680, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024), and

Range v. Att’y Gen., 124 F.4th 218 (3d Cir. 2024)

(en banc) (“Range II”), only support either temporary

disarmament for dangerous individuals or disarmament for individuals convicted of violent crimes. 10

Under Walters’s reading of these cases, § 922(g)(1) is

unconstitutional as applied to him because he was

not deemed physically dangerous, and he was not

arrested for a violent crime. Walters’s interpretation

of prevailing Second Amendment jurisprudence as it

relates to § 922(g)(1) is incorrect.

The Supreme Court’s decision in New York Rifle &

Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213

L.Ed.2d 387 (2022), “represented a sea-change in

Second Amendment jurisprudence.” Dorsey, 105

F.4th at 530. Bruen established a two-part test for

determining the constitutionality of a law under the

Second Amendment. We must first decide whether

Walters is a part of the “people” protected by the

Second Amendment and whether the statute

“regulates Second Amendment conduct.” Range II,

124 F.4th at 226, 228. If so, then the government

“must affirmatively prove that its firearms regulation

10 To a lesser extent, Walters also tries to rely on the Sixth

Circuit’s reasoning in United States v. Williams, 113 F.4th 637

(6th Cir. 2024), to show that his conviction violates the Second

Amendment. However, Walters acknowledges, as he must, that

the Sixth Circuit upheld a § 922(g)(1) conviction and “much of

the reasoning in Williams is at odds with this Court’s analysis

in Range II[.]” Walters Supplemental Br. 6. It is difficult for us

to understand how another circuit court’s decision to uphold the

constitutionality of a § 922(g)(1) conviction makes it obvious

that Walters’s conviction is unconstitutional. Because it is not

plainly apparent, we find the Williams line of argument

similarly unavailing.

18a

is part of the historical tradition that delimits the

outer bounds of the right to keep and bear arms.”

Id. at 225 (quoting Bruen, 597 U.S. at 19, 142

S.Ct. 2111). We agree with Walters that Range II

establishes that individuals convicted of a felony

“remain[ ] among ‘the people’ despite” their prior

convictions. Id. at 228. And we agree that § 922(g)

(1), as applied to Walters, “regulates ‘quintessential

Second Amendment conduct: possessing a handgun.’ ”

United States v. Harris, 144 F.4th 154, 157 (3d Cir.

2025) (quoting United States v. Moore, 111 F.4th 266,

269 (3d Cir. 2024)). But our agreement ends there.

Neither Rahimi nor Range II goes as far as Walters

contends. And neither saves him from his conviction.

Rahimi evaluated whether § 922(g)(8) was consistent with the Nation’s history and tradition of

firearms regulation and left for another day whether

“the Second Amendment prohibits the enactment of

laws banning the possession of guns by categories of

persons thought by a legislature to present a special

danger of misuse[.]” Rahimi, 602 U.S. at 698, 144

S.Ct. 1889 (citation omitted). Section 922(g)(8) only

concerns the temporary disarmament of a person who

is under a domestic violence restraining order; the

Court did not have to decide issues of permanent

disarmament for individuals with prior non-violent

convictions. And the Court expressly did not decide

“the reach of the Second Amendment,” id. at 691, 144

S.Ct. 1889, “whether the government may disarm a

person without a judicial finding that he poses a

‘credible threat’ to another’s physical safety,” id. at

713, 144 S.Ct. 1889 (Gorsuch, J., concurring), or

“whether the government may disarm an individual

permanently,” id. Therefore, Rahimi does not resolve

Walters’s appeal. Unable to hang his hat on Rahimi,

Walters turns his attention to Range II to establish

19a

that § 922(g)(1) is unconstitutional as applied to him.

In Range II, we considered whether it was constitutional to permanently disarm someone whose

conviction for “food-stamp fraud” was “[m]ore than

two decades” ago, who “completed his sentence,” and

who had virtually no subsequent criminal history.

Range II, 124 F.4th at 223, 232. In Range II’s

“narrow” decision, where we expressly declined to

“preview how this Court would decide future Second

Amendment challenges,” we held that § 922(g)(1)

violated the Second Amendment as applied to Range

because there was “no evidence that [Range] poses a

physical danger to others,” his offense was not

“closely associated with physical danger,” and his

conviction occurred “[m]ore than two decades” earlier.

Range II, 124 F.4th at 230, 232, 232 n.13. So

Walters’s arguments under Range II are unavailing.

And our decision in Dorsey 11 explains why.

There, we held that a four-year-old conviction for

carrying a firearm without a license was not

substantially similar to Range’s over two-decade-old

food stamp fraud conviction that was followed by

little to no interaction with law enforcement. 105

F.4th at 532; Range II, 124 F.4th at 223. Just as in

Dorsey, “[Walters]’s statute[s] of conviction and the

nature of his prior offense[s] are meaningfully different from Range’s.” Dorsey, 105 F.4th at 530, 532.

Walters’s criminal history is more extensive than

either Range’s or Dorsey’s. Between 2005 and 2012,

Walters had nine criminal convictions, including

11 We

take this opportunity to formally affirm Dorsey. We

released Dorsey three days after Rahimi was handed down and

before Range II was argued or issued. Although Dorsey did not

address Rahimi nor Range II, we hold that its reasoning is

consistent with both opinions.

20a

three for the distribution of controlled substances.

Therefore, Walters cannot show that it was plainly

“beyond dispute that he [was] similarly situated to

Range for Second Amendment purposes.” Id. As the

Dorsey court explained, “[i]t is far from clear that” an

offense for “failure to comply with a state law

regulating the possession and use of deadly weapons”

is “similarly situated . . . for Second Amendment

purposes” to “essentially a crime of dishonesty.” Id. at

530.

Unlike Range and his decades-old fraud conviction,

it is not plain that someone convicted of three drug

trafficking convictions does not pose a physical

danger to others. As we have explained, drug

trafficking may be the kind of conviction justifying

disarmament because dealing drugs runs the risk of

violence. See Pitsilides v. Barr, 128 F.4th 203, 213 (3d

Cir. 2025). And if the “Second Amendment’s

touchstone is dangerousness,” then it does not plainly

follow that Walters’s conviction is unconstitutional.

Id. (quoting Folatjar v. Att’y Gen., 980 F.3d 897, 924

(3d Cir. 2020) (Bibas, J., dissenting)). Based on our

precedent, we evaluate the individual’s criminal

history before deciding whether § 922(g)(1) has been

unconstitutionally applied. Id. at 212; see also Range

II, 124 F.4th at 232 (noting that Range had no

significant interaction with law enforcement following his fraud conviction). When looking at the totality

of Walters’s criminal history, his three convictions for

drug trafficking, alone, cut against his as-applied

challenge. Therefore, it is hardly plain that it is

unconstitutional to disarm, even permanently, a

person convicted of non-violent drug trafficking

offenses.

21a

Furthermore, a canvas of our sister circuits’

treatment of constitutional challenges to § 922(g)(1)

does not lead to a contrary result. 12

To be clear, we do not here, nor did we in Dorsey,

foreclose the possibility that someone who is more

similarly situated to Range in the nature and

remoteness of the prior offense may meet or exceed

plain-error review’s high bar. Even so, when making

this determination, we must conduct a case-by-case

analysis. And “[g]iven the sea-change effected by

Bruen, . . . considering the narrowness of our decision

in Range [II],” and as shown by canvasing our sister

circuits’ treatment of constitutional challenges to

§ 922(g)(1), it is far from plain that Walters’s

conviction violates the Second Amendment. Dorsey,

105 F.4th at 533.

12 E.g., United States v. Langston, 110 F.4th 408, 413 (1st Cir.

2024) (affirming a § 922(g)(1) conviction based on previous

convictions for theft and drug trafficking on plain error

review); United States v. Diaz, 116 F.4th 458, 462, 472 (5th Cir.

2024) (rejecting a § 922(g)(1) constitutional challenge where the

defendant was previously arrested for attempting to break

into a car, while possessing a handgun and a baggie of

methamphetamines); Williams, 113 F.4th at 662 (6th Cir.)

(affirming a § 922(g)(1) conviction where the defendant was

previously convicted of two felony counts of aggravated robbery

with a deadly weapon); United States v. Jackson, 110 F.4th

1120, 1122, 1129 (8th Cir. 2024) (affirming a § 922(g)(1)

conviction where the defendant was twice convicted for selling

controlled substances); United States v. Duarte, 137 F.4th 743,

748, 762 (9th Cir. 2025) (en banc) (upholding a § 922(g)(1)

conviction for a person who was previously convicted of drug

trafficking); United States v. Dubois, 139 F.4th 887, 889, 894

(11th Cir. 2025) (rejecting a Second Amendment challenge to a

§ 922(g)(1) conviction where the defendant was previously

convicted of drug trafficking).

22a

IV. CONCLUSION

For the reasons discussed above, we will affirm the

District Court’s judgment of conviction.

23a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

————

1:19-CR-00176-1-RBK

————

UNITED STATES OF AMERICA

RAYMON WALTERS,

Defendant.

————

Pages 1 – 5

————

Mitchell H. Cohen Building & U.S. Courthouse

4th & Cooper Streets

Camden, New Jersey 08101

July 2, 2021

BEFORE: THE HONORABLE

ROBERT B. KUGLER,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

OFFICE OF THE UNITED STATES

ATTORNEY

BY: KRISTIN M. HARBERG,

ASST. UNITED STATES ATTORNEY

ALISA SHVER, ASST. UNITED STATES II

401 Market Street, 4th Floor

Camden, NJ 08101

For the Plaintiff

24a

EARP COHN

BY: EDWARD F. BORDEN, JR., ESQUIRE

20 Brace Road, Fourth floor

Cherry Hill, NJ 08034

For the Defendant

Karen Friedlander, CCR-NJ, NYRCR, RDR, CRR

friedlanderreporter@gmail.com

(856) 756-0160

Proceedings recorded by mechanical

stenography; transcript produced by

computer-aided transcription.

25a

[2] (PROCEEDINGS held in open court before The

Honorable ROBERT B. KUGLER, United States

District Judge, at 1:00 p.m.)

THE DEPUTY CLERK: All rise.

(Jury exits.)

THE COURT: Okay. Have a seat. You had an issue,

Mr. Borden?

MR. BORDEN: Yes, Your Honor, and it has to do

with the Old Chief stipulation.

THE COURT: Okay.

MR. BORDEN: I -- you know, I’ve done some

research on these kinds of issues over the years. There

are certain things in a criminal trial where the client

has exclusive jurisdiction to decide. The obvious things

are whether to testify or not, whether to take an

appeal, any number of issues. There are about a half

dozen of them that the client has the exclusive right to

make the decision, obviously, in consultation with

counsel.

Everything else is a matter for counsel to decide,

certainly also in consultation with the client. I have

spoken to Mr. Walters a number of tines about the Old

Chief stipulations. I will tell you that he has, as Your

Honor has heard, he does not want to stipulate to that,

doesn’t want me to stipulate to the contents of the Old

Chief stipulation. He’s made that very clear. I don’t

want there to be any doubt on the record. I spoke to

him about it again earlier today. [3] His view on that

remains as it was, but I want to notify the Court that

I’ve executed the Old Chief stipulation, and I’m going

to tender it to the government. I believe that the

government should accept it. I believe that -- frankly,

I believe, it would be error for the government to refuse

26a

to accept it, and I believe it would be ineffective

assistance on my part if I did not enter into that

stipulation, because otherwise, as we all know, then

the jury will hear the details of Mr. Walters’s prior

convictions unnecessarily.

There’s no advantage to not signing the Old Chief

stipulation in this particular case. Mr. Walters loses

no rights. Were he to testify, he could talk about those

convictions, if the Court allows it as appropriate

testimony. He loses no rights by agreeing to sanitize - essentially, sanitize the information regarding the

conviction.

So I wanted to put that on the record so Your Honor

knows and so the government knows that that’s what

the defense is going to do.

THE COURT: Does the government want to say

anything? You don’t have to.

MS. HARBERG: So, Your Honor, if the stipulation

is signed, we will accept it, and we will agree that Your

Honor should enter into evidence, and I’m not sure

what your personal practice is, whether you read it,

somebody reads it, but, like, we will not object to it if

defense counsel signs [4] the Old Chief stipulation.

THE COURT: If you want me to read it, I’ll read it,

otherwise, either side can read it. It’s up to you. I don’t

care.

Now I’m not being asked to decide anything, but I

will state my observations, my feelings, and that is

that Mr. Borden is absolutely correct, that there are

some matters which only the defendant can decide.

The first being whether to go to trial or plead guilty,

the second whether to testify at the trial or not, the

third would be if he’s convicted, to make a statement

27a

at the time of sentencing, and the fourth would be

whether to file an appeal or not. Otherwise, it’s

entirely up to counsel and his or her discretion as to

whether to enter into stipulations. Since counsel has

chosen to do so, I will honor that decision and the

stipulation will be read to the jury and will become

part of the evidence in the case. Anything else?

MS. HARBERG: Nothing from the government.

Thank you.

MR. BORDEN: Your Honor, may I have just one

moment? Mr. Walters is signaling to me.

THE COURT: Sure.

(Mr. Borden and Mr. Walters consult.)

MR. BORDEN: I have nothing else today, Your

Honor.

THE COURT: All right. Enjoy the weekend,

everybody. [5] We’ll see you Wednesday morning

bright and early. Let’s get this done.

(1:02 p.m.)

- - - - - - - - - - - - - - I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled

matter.

/S/ Karen Friedlander, CRR, RMR

Court Reporter/Transcriber

10-5-22

Date

28a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

————

CRIMINAL NUMBER: 1:19-CR-00176-1-RBK

————

UNITED STATES OF AMERICA

RAYMON WALTERS,

Defendant.

————

TRIAL

Pages 1 - 188

————

Mitchell H. Cohen Building & U.S. Courthouse

4th & Cooper Streets

Camden, New Jersey 08101

Wednesday, July 7, 2021

BEFORE: THE HONORABLE

ROBERT B. KUGLER,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

OFFICE OF THE UNITED STATES

ATTORNEY

BY: KRISTIN M. HARBERG,

ASST. UNITED STATES ATTORNEY

401 Market Street, 4th Floor

Camden, NJ 08101

For the Plaintiff

29a

Earp Cohn P.C.

BY: Edward F. Borden, Jr., Esquire, ESQ.

20 Brace Road

Cherry Hill, NJ 08034

For the Defendant

Karen Friedlander, CCR-NJ, NYRCR, CRR, RMR, RDR

friedlanderreporter@gmail.com

(856) 756-0160

Proceedings recorded by mechanical stenography;

transcript produced by

computer-aided transcription.

30a

[5] (OPEN COURT, July 7, 2021, 9:07 a.m.)

MS. HARBERG: Good morning, Your Honor, Kristin

Harberg on behalf of the Government. So when we

were last here, on Friday, at the end of the day, Mr.

Borden placed on the record that he had signed the

Old Chief and Rehaif stipulation and he also placed

on the record that he had discussed this with the

defendant and the defendant would not sign the

stipulation, and that Mr. Borden was making this

decision as a strategic legal decision, he was signing

the stipulation without the defendant.

After that, we had a long discussion with my supervisors and with the people in our Appellate Unit, and

we will not be accepting the stipulation. We are

concerned particularly because this stipulation,

essentially it consists of a stipulation to a mental

element, to the defendant’s state of mind, and the Old

Chief opinion actually talks about that a little bit. We

are concerned that a defense attorney overriding a

defendant’s desire to not enter the stipulation, which

includes a statement about his mental state that he

knew that he was in the category of defendants who

were not allowed to have a gun, we are concerned

about it.

And again, there is some dicta in the Old Chief

opinion that talks about how, quote, proving status

without telling exactly why that status was opposed

leaves no gap in the story of the defendant’s subsequent criminality, end [6] quote. And here, this

stipulation, it includes the fact that the defendant

knew, he was aware of the fact that he was a

previously convicted offender, so we’re concerned

about that.

31a

And further, obviously, Old Chief involved a situation where the defendant himself personally wanted

the stipulation to be signed and, of course, this

situation is completely different from that. The defendant does not want the stipulation signed. Defense

counsel does. So, in light of that, the Government

intends to prove the elements of its case by introducing

two of the four, two of the four of the defendant’s prior

convictions. We talked about this before. There are

four total. The Government is not going to seek to

admit the two older ones for this purpose, although I

think we could. I think it’s not necessary. So we will be

introducing the certified judgments of conviction for

the defendant’s two 2011 convictions, both drug

related.

And in addition to that, we will also be introducing

into evidence the incarceration records, which were of

course turned over in discovery and have been marked

as an exhibit and have the appropriate business

records and authentication certifications attached

from the Camden County correctional facility which

reflect that the defendant served more than 365 days

in jail. Specifically, I think it was 431 days in the

Camden County jail as a result of those two

convictions. And the Government believes that it’s

necessary for us to [7] introduce those pieces of

evidence in order to establish the Rehaif elements.

THE COURT: Mr. Borden, did you want to say

anything?

MR. BORDEN: I do, Your Honor. Several things.

First of all, I think admitting this evidence in the

face of Old Chief really invites a finding of error. I’ve

heard nothing from the government and I’m aware of

nothing that precludes a lawyer from stipulating to

32a

certain things on behalf of a client. Rehaif -- not

Rehaif, but Old Chief discusses at great length the fact

that the defendant in that case was essentially

stipulating to an element of the offense, and found no

problem with it. Certainly a matter to be discussed,

but found no problem with it.

So, you know, I can recite at length what Old Chief

says about Rule 403 and prejudice, and the undue

need for it here, but I really think it invites error.

And, Your Honor, I actually was thinking over the

weekend, even before I heard about this, about

renewing my motion for a bifurcated trial, because

of the number of jurors who, potential jurors who

expressed a problem, a potential problem with getting

by the fact that the defendant had previously been

convicted.

But I’m not renewing that motion, because I think

that horse is out of the barn. They’ve essentially been

told that the defendant has a prior conviction,

whatever [8] stipulation occurs.

So, my decision was based upon my desire to do

everything I could to minimize the damage that those

prior convictions would have, and if the Government

insists on introducing this, it will simply inflame that

whole issue ever more.

So, I think the record is pretty clear and the Court

will obviously make a determination whether to allow

the Government to reject my proffered stipulation,

which, of course, was exactly the procedural posture in

Old Chief that led to a reversal of -- eventually led to

a reversal of conviction.

THE COURT: All right. I appreciate you not

renewing your motion about the bifurcation, but I will

33a

note that all the potential jurors, and “potential” was

the word used and it’s the correct word used to express

any discomfort about this issue, has been excused from

the jury. I don’t believe either side used all of its

preemptories.

Anyway, getting to the issue at hand, I can’t force

the Government or any party to accept any stipulation.

A stipulation is just that, it’s an agreement between

and among the parties. If they don’t agree, they don’t

agree. I recognize your misgivings. I have the same

misgivings. We are proceeding in the face of serious

issues, but that’s what they want to do. That’s what

we shall do.

[9] So you’re just going to introduce the certified

judgment of conviction?

MS. HARBERG: The two certified judgments of

conviction, as well as the record of incarceration from

the Camden County jail, which is -- has been turned

over in discovery and marked as an exhibit.

THE COURT: Well, what does that look like, the

record of incarceration? What exactly does that mean?

MS. HARBERG: Let me obtain that for Your Honor.

THE COURT: Is it a piece of paper? What is it?

MS. HARBERG: Yes, Your Honor.

THE COURT: Is there a log-in sheet that says he

was here on those dates?

MS. HARBERG: Yes, Your Honor, it is. So it’s

marked as Government’s Exhibit 22. There is a certification by the business records custodian from the

Camden County correctional facility certifying that it

falls within a business records exception and that it’s

an authentic peace of evidence. And there is a cover

34a

letter that reflects that the defendant served time in

the Camden County correctional facility from August

10th, 2010 through August 5th 2011 for a total of 431

days, connected to his conviction for these two offenses

which I referenced which of course have their

indictment numbers attached to the judgment of

conviction, and then there is a log that shows all of the

times that the defendant was in the [10] Camden

County jail. And if you go through, you can find, it’s

digital, the warrant number associated with the

indictment, and you can see the amount of time that

he spent.

Now, of course, there’s a bunch of information that

would need to be redacted out of this, because it shows

all of the other times the defendant served time in the

jail. So, we would either need to redact those out, or I

could talk to cocounsel about whether we could just

introduce -- remove the log from this and just

introduce the cover letter, which says the total number

of days, so that the jury doesn’t see that he was in the

jail for other unrelated offenses. There’s things that

can be done to redact the extraneous information from

this.

THE COURT: Perhaps Mr. Borden has some

thoughts on that he might want to share with you?

MR. BORDEN: Well, Your Honor, I was going to

object to specific items of evidence when that time

came, given the refusal to stipulate. I see no need to

introduce two convictions, records of two convictions,

that the proof of one is certainly adequate, and again,

addresses the 403 issue. And certainly, I understand

the claim of relevance as to the number of days in the

jail, but I certainly think that we could probably reach

an agreement as to that, to sanitize that way, that

somehow minimizes the prejudice.

35a

THE COURT: Well, you’re welcome to try with the

[11] Government to come to some agreement to that

issue, but I think you’re right, the relevance is apparently you need both convictions to get the total

number of days over 365. So that would be the relevance which would outweigh the prejudicial effect.

MS. HARBERG: So, Your Honor, just to be fair, and

fully -- full disclosure, I believe, and I’d have to look at

the chart. I believe he was in the jail for both of those

crimes concurrently, so I think it’s probably not

accurate that I need both of those convictions to get

the aggregate. I will double-check that.

But the government’s position would be that the

compromise is actually that I’m not seeking to introduce all four of the convictions, and the Government

would be seeking to introduce two, because again, with

Rehaif, there’s now this new element that we need to

prove that the defendant knew that he was a convicted

offender, and the fact that he was convicted of two

separate unrelated crimes makes it less likely that he

somehow forgot about these convictions or wasn’t

aware a couple years later about the convictions.

So -- but I’m sure we can talk about this, if we could

reach some sort of compromise about how the evidence

goes in, we’ll certainly attempt to do that. And if not,

we’ll have to argue it on the record.

THE COURT: Well, that makes it a more difficult

[12] Rule 403 application. But perhaps you want to

talk to Mr. Borden about that on the next break, okay?

So we’re going to get the jury in, we’re going to put

them under oath. I’m going to give them a preliminary

charge and we’ll get right to openings, okay?

MS. HARBERG: Yes.

36a

THE COURT: Are you going to open at this time,

Mr. Borden, or are you going to -MR. BORDEN: Yes, sir. Yes, sir.

THE DEPUTY CLERK: All rise.

* * *

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.