Argument analysis

Justices wrestle with procedural issues stemming from their own federal criminal-law decision

If there was a dominant theme at Tuesday’s oral arguments in Greer v. United States and United States v. Gary, it was that the justices are struggling to draw boundaries around the circumstances in which federal criminal defendants are entitled to a new proceeding in the district court after the court of appeals has found “plain error” in the trial or plea hearing. The specific impetus for this line-drawing exercise is the court’s game-changer 2019 decision in Rehaif v. United States, but the justices are clearly concerned about the more general application of whatever lines they end up drawing.

In Rehaif, the court upset precedent nationwide by holding that 18 U.S.C. § 922(g), the federal statute making it a crime for a convicted felon to possess a firearm, applies only to people who know they are “felons” within the meaning of that law. Although Rehaif does not apply to anyone whose Section 922(g) conviction had run the full course of appeals as of June 21, 2019, when the decision was handed down, it does apply to those whose appeals were still pending on that date. None of those convicted persons were aware of the government’s obligation to prove knowledge of their felon status at the time they pleaded guilty; if they went to trial, they neither requested nor received a jury instruction to that effect. Tuesday’s oral arguments were about which of those persons, if any, should get new trials or plea hearings — or if instead federal appeals courts can simply find something in the record on appeal justifying a simple reaffirmance.

Gregory Greer was convicted by a federal jury of being a felon in possession of a firearm. After the decision in Rehaif, the U.S. Court of Appeals for the 11th Circuit reaffirmed his conviction on the ground that, according to the pre-sentence investigation report, Greer had previously been convicted of five felonies and had served more than a year in prison. Therefore, the court reasoned, it wouldn’t have made any difference if his jury had been instructed that they could convict only if they found that Greer knew he was a felon. The pre-sentence report had not been admitted into evidence at the trial, and therefore was not part of the trial record, but it was part of the fuller district court record on appeal. Greer argues that the appellate court should have limited itself to whatever was before the jury.

Assistant to the Solicitor General Benjamin Snyder, defending the 11th Circuit’s use of the pre-sentence report, was pushed on just how far outside the trial record an appellate court may go. “Is the government’s position that the reviewing court can always look outside the trial record, or does it depend on the particular circumstances?” asked Chief Justice John Roberts.

“Our view is that the court can always look outside the trial record and consider other evidence in the record that is relevant to the error identified,” replied Snyder.

“So does it depend on the nature of what they’re looking at?” asked Roberts. Suppose the reviewing court wants to consider evidence of a discussion between two other prisoners to the effect that the defendant “knew that it was a felony, that’s what he told me.” Is the government arguing that the appeals court can consider such a statement regardless of its admissibility? Roberts asked.

“I’m not saying that they can consider evidence that is not admissible,” answered Snyder. “I’m saying that they can consider what evidence would be admissible. I recognize that that’s a fine line. The sort of scenario I’m imagining is a scenario where the court is looking to hearsay evidence, but there’s no reason to doubt, for example, that the [government] would be able to present that evidence in an admissible form at trial.”

Roberts broke in. “The court would have to judge trial tactics — whether a particular lawyer would want to put that kind of evidence in?”

“I think that that is a function of the standard that the court is applying,” said Snyder. “The standard is whether the defendant has shown a reasonable probability of a different outcome at an error-free trial.”

Justice Samuel Alito continued the inquiry with a hypothetical in which the defendant would have a realistic argument that he lacked knowledge of his felon status. Suppose, Alito asked, the previous conviction was 20 years ago and the defendant only got probation for a crime that was not a felony under state law but qualifies as a felony under the federal gun-possession statute.

“Could the government rely on, let’s say, an affidavit by somebody who spoke to the defendant shortly before the defendant was arrested and the affidavit says the defendant said … ‘I was convicted of a felony and I can’t have a gun, but I really feel bad, I must have a gun for self-defense’?” Alito asked.

“I think it’s more likely in those circumstances that the defendant is going to be able to make the substantive showing that the plain-error standard requires and going to be able to show that there’s a reasonable probability that the jury would have agreed with him and disagreed with the government on that piece of evidence,” replied Snyder, going on to stress that Alito’s hypothetical was very different from Greer’s case.

Justice Amy Coney Barrett noted that her old court, the U.S. Court of Appeals for the 7th Circuit, had adopted a clear-cut approach allowing consideration of anything in the larger district court record on appeal, but nothing beyond that. “Why does the government want anything more than that, especially in these cases?” she asked, presumably referring to Rehaif cases.

Snyder responded that the government was, in fact, not asking for more than that. ” Adopting that line would be sufficient to decide this case.”

The second argument on Tuesday was the case of Michael Andrew Gary, who pleaded guilty in federal court to being a felon in possession of a firearm. After Rehaif, a panel of the U.S. Court of Appeals for the 4th Circuit held that the failure to apprise Gary of the government’s obligation to prove that he knew he was a felon at the time he possessed the weapon was a “structural” error and therefore that his conviction had to be vacated whether or not the error made any difference in the proceeding’s outcome.

Jeffrey Fisher, a Stanford law professor representing Gary, defended the 4th Circuit’s structural-error approach. Justice Stephen Breyer asked him whether there was anything wrong with a system where a defendant loses without a remand to the district court if there is no realistic chance that the plea hearing would have come out any differently even after Rehaif was decided.

Fisher said there would be two things wrong with such a system. First, it would violate the defendant’s basic autonomy if he must submit to a conviction without understanding the charge. “That may sound like a formalistic rule, but, remember, guilty pleas are themselves an innovation the framers were not even aware of, and so, when you’re going to introduce something — a conviction without trial — the defendant should at least have fair notice,” he said. Second, “you simply cannot trust whatever record may have been constructed at the guilty plea colloquy where the defendant has no reason to know that the missing element has any salience at all.”

Hearing Fisher’s invocation of “autonomy,” Alito asked how far that rationale could extend. “Why wouldn’t the autonomy argument apply to any misstatement or omission at [the plea hearing]? The judge explains to the defendant the rights that the defendant is giving up and what the government would have to prove if the case went to trial, and the defendant presumably makes a decision about whether to go to trial or plead guilty based on that understanding of what is at stake. And so, if the judge mis-describes what is at stake, it seems to me the same autonomy interest is implicated. No? What’s wrong with that?” asked Alito.

In some of the court’s precedents, Fisher responded, the trial judge’s description is only technically incorrect. Here, the description lacked an entire essential element of the charged offense. The defendant’s autonomous decision-making process isn’t defeated by technical errors in the same way as when an entire element is missing, Fisher said.

Justice Sonia Sotomayor asked Fisher why his client should get a new proceeding when by all appearances Rehaif would not have made any difference in the outcome. “Here is a man who was convicted seven times, multiple separate jail terms, vastly exceeding one year, and I think he had been let out of his last conviction months before he was arrested on this charge,” said Sotomayor. And “how about his admission … that he knew he was a felon and that’s why he was hiding?”

“That was not his admission,” replied Fisher. “What his admission was, and I’m going to quote here, was that he was aware he was not supposed to have a weapon. And he did not say anything about his felon status. And remember, at the outset of this case, he was charged under a state law that prohibited carrying guns without certain, job titles, like a policeman or a firefighter or the like. … And so that alone would have told him he couldn’t carry a gun for reasons having nothing to do with any felon status.”