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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.
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They’re Trying to Shut Us Down
Over the last several months, I’ve lost count of how many times the powers-that-be have tried to shut us down. They’ve sent hackers at us, forcing us to take extreme measures on web security. They sent attorneys after us, but thankfully we’re not easily intimidated by baseless accusations or threats. They’ve even gone so far as to make physical threats. Those can actually be a bit worrisome but Remington has me covered.
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Thank you and God bless!
JD Rucker