Felon Possession of Firearm: Rehaif v. United States

The Supreme Court judgement under Rehaif said that a felon must have knowledge that they are unable to be in possession of a firearm.

Why is the Rehaif Case Important?

The Rehaif case may be significant because of its consequences.  It is possible that there will now be a flood of litigation from defendants who will claim that the status element of the crime was not proven by the Government in their own cases.  It is important to note that being illegally in the U.S. is only one of nine different statuses that make possession of a gun illegal.  Another status is being a convicted felon.  Thus, it is conceivable that many people may try to re-open their cases, claiming that they did not know that they were unaware of being a felon in possession of a firearm.  If you believe that this ruling may have a bearing on your case or that of a loved one, reach out to us and schedule a complementary call to discuss your case.

History on  Rehaif vs US

Hamid Rehaif came to the United States on a student visa.  He enrolled at the Florida Institute of Technology.  He did very poorly in school and was dismissed for low grades.  The school told him that his “immigration status” would be terminated unless he transferred to a different university or left the country.

Subsequently, Rehaif visited a firing range, shooting two firearms.  The Government learned of Rehaif’s target practice and charged him criminally with possessing firearms as an alien unlawfully in the United States. This created a felon in possession of a firearm. Rehaif was tried before a jury.

At the close of his trial, the judge instructed the jury that the Government was not required to prove that Rehaif knew that he was illegally in the United States. Rehaif was then convicted and sentenced to 18 months in prison.

On appeal, Rehaif argued that the judge’s instruction to the jury was incorrect, and that the Government needed to prove that he knew he was illegally in the country.  The Eleventh Circuit Court of Appeals, however, rejected Rehaif’s argument and affirmed his conviction and sentence.  Rehaif then appealed to the Supreme Court, which agreed to hear the case.

Felon "Knowingly" in Possession of a Gun 

As noted in the title above, Mr. Rehaif’s case turns on the scope of the word “knowingly.”  The law under which Rehaif was charged states that it is unlawful for aliens who are illegally in the United States to possess firearms, and that a person can be fined or imprisoned up to 10 years if he or she “knowingly violates” the law.

Based on that law, the question becomes:  Does the Government need to prove only that the accused knew he was in possession of a firearm?  Or, does the Government need to prove that the accused knew that he possessed a firearm and that he knew he was illegally in the country?

The Majority Opinion

A seven-Justice majority held that the Government must prove both that a person knew he possessed a firearm and that he knew he was illegally in the country when he possessed the firearm.  Justice Breyer wrote the opinion for the majority.  Justice Breyer began his analysis by stating that the determination of what the Government must prove in a federal criminal case is a question of congressional intent, i.e., what Congress intended to be the elements of a crime.

Accordingly, when looking for congressional intent, the Court begins with a long-standing presumption in favor of “scienter.”  In other words, it is presumed that Congress intends to require a criminal defendant have the required mental state (or state of mind) for each element that “criminalizes otherwise innocent conduct.”

The text of the law in this case is that it is a crime for any person “being an alien illegally or unlawfully in the United States” to “possess in or affecting commerce, any firearm or ammunition.”  Thus, the elements of the crime are as follows:

1. A status element – “being an alien illegally or unlawfully in the United States;”
2. A possession element – to “possess;”
3. A jurisdiction element – “in or affecting commerce;”
4. A firearm element – “any firearm or ammunition.”

Apart from the jurisdiction element, the presumption of “scienter” should apply to each element.  Thus, to be guilty of a crime committed “knowingly,” a person must know the status element, the possession element, and the firearm element.  In short, the Government must prove both that Rehaif knew he was illegally in the country andthat he possessed a firearm.

In this case, the majority opinion points out that possessing a gun can be entirely innocent conduct.  What makes Rehaif’s conduct criminal is the status element, the fact that he was illegally in the country while in possession of a gun.  Without Rehaif knowing his status, he may lack the state of mind necessary to make his conduct wrongful.

During arguments before the Court, the Government raised the common maxim that “ignorance of the law is no defense.”  Thus, the Government maintained that defendants like Rehaif do not need to know their own status to be guilty of a crime.

The Court majority, however, was not persuaded by that argument.  There is a difference, according to the majority, between having the required mental state for the elements of a crime yet being unaware of a law forbidding the conduct, and actually being unaware of a fact that would make something a crime.

In sum, the trial judge’s instruction was incorrect, and Rehaif’s case was reversed and remanded for further proceedings.

Dissenting Opinion

Justice Alito wrote a dissenting opinion joined by Justice Thomas. Justice Alito was particularly troubled by the fact that the criminal statute in Rehaif’s case has been used to prosecute thousands of defendants over the course of 30 years.  The majority opinion, says Justice Alito, now puts those prosecutions in question.

Questioning the fact that the Court agreed to hear the case in the first place, Justice Alito stated that there was no lower court conflict that needed to be resolved and no indication of any serious injustice as a result of the consistent application of the law by the lower court.

Justice Alito was sure to mention that Rehaif was not as innocent as the majority would lead us to believe.  It appears that Rehaif checked into a hotel, demanded that he have a room on the eighth floor, facing the airport.  Also, he frequented a firing range.

Finally, Justice Alito noted that the majority’s opinion was not based on the statutory text of criminal law in question.  Rather, Justice Alito says that the majority relies on “its own guess about congressional intent.  And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor.”

Conclusion

The Rehaif case may be significant because of its consequences.  It is possible that there will now be a flood of litigation from defendants who will claim that the status element of the crime was not proven by the Government in their own cases.  It is important to note that being illegally in the U.S. is only one of nine different statuses that make possession of a gun illegal.  Another status is being a convicted felon.  Thus, it is conceivable that many people may try to re-open their cases, claiming that they did not know that they were unaware of being a felon in possession of a firearm. 

Cases Involving Rehaif Claims

Sixth Circuit Vacates Denial of 2255 Motion and Remands for Evidentiary Hearing on Rehaif Claim: Juarico-Cervantes (6th Cir. 2023)

In May 2018, Juarico-Cervantes was charged with one count of knowingly making a false written statement to procure a firearm, in violation of 18 U.S.C. 922(a)(6); one count of possessing firearms and ammunition, in violation of 18 U.S.C. 922(g)(5)(A); and one count of knowingly possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. 922(k). He pled guilty to count two of the indictment.

The district court entered judgment on November 2, 2018. Juarico-Cervantes did not appeal. On June 21, 2019, the Supreme Court decided Rehaif v. United States, which held that 18 U.S.C. 924(a)(2) requires proof that a defendant knew he belonged to a relevant category of persons barred from possessing a firearm. Shortly after, Juarico-Cervantes filed a 28 U.S.C. 2255 motion, in which he argued that the court should apply Rehaif retroactively and find his conviction no longer valid. Juarico-Cervantes also made a claim of ineffective assistance of counsel and argued that his attorney failed to file an appeal that would have permitted him to raise his Rehaif claim on direct appeal.

The district court denied Juarico-Cervantes’ 2255 motion without a hearing. The court reasoned that the admissions during the change of plea hearing were sufficient to show Juarico-Cervantes was aware of his status and there was no Rehaif error. However, in a footnote the court noted that reasonable jurists could reach the opposite conclusion on this claim. Regarding Juarico-Cervantes’ ineffective assistance of counsel claim, the district court found that Juarico-Cervantes could not show he was prejudiced by his attorney’s conduct because he failed to show he would have timely appealed.

On appeal, Juarico-Cervantes argued that the district court’s judgment should be reversed because (1) the Supreme Court’s decision in Rehaif should be applied retroactively to vacate his sentence, (2) his attorney provided ineffective assistance of counsel that caused him not to appeal, and (3) the district court should have held an evidentiary hearing on his claims.

The government agreed that Rehaif applies retroactively on collateral review, and that counsel acted deficiently in not consulting with Juarico-Cervantes about the possibility of an appeal after he expressed an interest in doing so.

As to Juarico-Cervantes’ Rehaif claim on the merits, the Sixth Circuit found numerous factual disputes that required an evidentiary hearing to resolve. Specifically, Juarico-Cervantes argued that the evidence in the record showed that he did not know that he was illegally or unlawfully in the United States. However, the district court relied on his responses to the district court’s questions during the plea hearing as conclusive evidence that he did. But the Sixth Circuit found that the district court’s inference that a person who admitted he entered the country unlawfully automatically knows he is an “illegal alien” is unsupported by evidence in the record. In such a case, an evidentiary hearing is warranted to address key factual questions not settled by the record as it stands.

Further, the court also concluded that an evidentiary hearing was necessary to resolve Juarico-Cervantes’ ineffective assistance of counsel claim. Juarico-Cervantes provided some evidence that he would have appealed in the form of text messages between his mother and his attorney. But the record was unclear whether Juarico-Cervantes’ mother was acting on his behalf or her own. This was a key issue that warranted an evidentiary hearing on whether Juarico-Cervantes would have appealed if counsel had consulted him.

Accordingly, the Sixth Circuit vacated the district court’s order denying Juarico-Cervantes’ 28 U.S.C. 2255 motion and remanded for an evidentiary hearing on the two questions presented on appeal.