A defendant convicted of being a felon-in-possession of a firearm under 18 U.S.C. § 922(g) after the Supreme Court’s 2019 decision in Rehaif v. United States is not entitled to a new trial or plea hearing unless he “makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon,” the court ruled Monday in the cases of Greer v. United States and United States v. Gary. Justice Brett Kavanaugh wrote for the unanimous court in Greer and for an 8-1 majority in Gary.
In Rehaif, the court ruled for the first time that a conviction for federal felon-in-possession requires proof not only that the defendant knew he had a firearm, but that he was a felon within the meaning of Section 922(g). Following Rehaif, many such defendants challenged their convictions, whether they had been convicted by a jury or had pleaded guilty. Each of these challenges presents the question of whether it would have made any difference in the result had the parties and court known at the time that the government was required to prove knowledge of felon status. Appellate courts have employed various approaches in handling such challenges, from going beyond the trial record to the larger “district court” record in a search for evidence demonstrating that the defendant knew of his felon status, to a prophylactic “structural error” approach that essentially guarantees a new hearing in all cases.
In Monday’s ruling, the court held that neither Gregory Greer nor Michael Andrew Gary had carried their burden of showing a “reasonable probability” that they would not have been convicted had the rule of Rehaif been observed in their cases. Both had been convicted of multiple offenses qualifying as felonies under Section 922(g), which by itself constitutes “substantial evidence” that they knew they were felons. Moreover, neither of them argued or made a representation on appeal that they would have presented evidence at trial that they did not, in fact, realize that they were felons.
Justice Sonia Sotomayor joined the court in Greer but dissented in Gary, saying that she would have remanded the latter case to allow the lower courts to rule in the first instance whether Gary satisfied the majority’s articulated standard. (She did agree with the majority that the U.S. Court of Appeals for the 4th Circuit erred in holding that Rehaif error constitutes “structural error” automatically entitling a defendant to relief.)
Check back soon for in-depth analysis of the opinion.
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