Working Out Rehaif Errors

  • Date:
  • December 23, 2020

In Rehaif v. United States, the Supreme Court clarified what the government must prove to secure a conviction under 18 U.S.C. § 922(g), which criminalizes gun possession for certain classes of people. Prior to Rehaif, most courts had held that the government only had to prove that a person knowingly possessed a weapon that had traveled in interstate commerce and was in the prohibited category of persons. Writing for a seven-justice majority, Justice Breyer held that the government also had to prove that a person knew she was in the category of persons ineligible to possess weapons (e.g., felons). The decision, I noted at the time, was likely to have some fairly broad ripple effects on gun prosecutions. Indeed, in dissent, Justice Alito emphasized that the “decision is no minor matter” and proclaimed that § 922(g)  “probably does more to combat gun violence than any other federal law.” Lower courts since then have been trying to sort out the implications of Rehaif, especially for those cases where a person was tried and sentenced under the prior rule that did not require the government to prove the defendant's knowledge of her status. The Court has at least two cert petitions dealing with aspects of Rehaif pending now (Hobbs, Gary).

The Eighth Circuit recently confronted an interesting situation raised by Rehaif in United States v. Robinson. There, the police arrested Emmanuel Robinson after they discovered he possessed a firearm and had a felony record (in fact, he had seven felony convictions). Robinson took the case to trial. The trial court advised him of his right to testify in his own defense, but told him in no uncertain terms that he would not be allowed to testify about whether he believed he could lawfully possess firearms. Robinson informed the judge that he was prepared to say: “I was instructed that my rights was reinstated, that my right to bear arms was reinstated. I was instructed that there’s – that felons in Missouri can possess weapons, that they can – that they got a right to bear arms.” He reiterated that, according to his understanding, “felons can possess – actually – after my paper – five years after my paper, I was told that my Second Amendment right was automatically reinstated.” The trial court explained to him the elements of the crime (in a pre-Rehaif world where the government did not have to prove he knew his status) and told him that his proposed testimony was irrelevant. He did not object to the Rehaif-deficient jury instructions and was convicted.

On appeal, Robinson argued that the evidence was insufficient to prove his crime in light of Rehaif. Construing that as a challenge to the jury instructions, the panel applied only plain error review. Among other things, that standard of review meant Robinson had to show a reasonable probability that the outcome of the proceeding would have been different without the error. To assess that challenge, the court first acknowledged that 922(g) does not bar felons who have had their civil rights restored from possessing firearms. Thus, it said, “[a]fter Rehaif, it may be that a defendant who genuinely but mistakenly believes that he has had his individual rights restored has a valid defense to a felon-in-possession charge under this provision.” Robinson argued that that was precisely what his testimony would have shown. But the panel disagreed, stating that his proposed testimony was only about whether the law prohibited his conduct, not about whether he fell into the relevant category. And because ignorance of the law is not an excuse, even after Rehaif, his claim failed.

I have to say that to me this seems a bit of stretch. Robinson did not have to prove that his testimony would have certainly changed the outcome, but only demonstrate a reasonable probability that it would have. I think his proposed testimony could be read to suggest that he believed his rights had been restored under state law, and that such restoration would have meant he was not in the category barred from possessing firearms under 922(g)(1). (This, to me, is what his reference to the “five years” after conviction was getting at.) Of course, a jury might not have believed such self-serving testimony, but even the panel left open the possibility that a honest belief of this kind could negate one of elements of the crime.