Felon In Possession of Weapon Case: Supreme Court Decides Greer/Gary

Greer/Gary is a felon in possession of a weapon case that many of you have been seeking that involves the court's prior opinion in Rehaif.  We published the syllabus last week.  Now we are going to get into the opinion regarding felon in possession of a weapon as a whole and consider what happens next.

Gary and Greer's Procedural History

Gary and Greer were both found guilty of felon in possession of a weapon. Greer was being questioned and ran away after taking to the police. He ran from the police and led them down a stairwell. The officers found a gun that was discarded. Greer was wearing an empty holster clipped inside his waistband.

Greer went to trial. Greer did not request that the court give a jury instruction requiring the jury to find that Greer knew he was a felon when he possessed the firearm. He was found guilty.

Gary had two separate encounters with the police. Both times the officers found Gary with a firearm. Gary was a convicted felon at the time of the incidents. He pled guilty.

The district court did not advise Gary that "if he went to trial, a jury would have to find that he knew he was a felon when he possessed the firearms."

Post Rehaif, both Gary and Greer waited new Mens Rea arguments on appeal. "Greer argued that he was entitled to a new trial because the District Court failed to instruct the jury that he had to know he was a felon.

Gary similarly argued that his guilty plea must be vacated because the district court failed to advise him during the plea colloquy that, if he went to trial, a jury would have to find that he knew he was a felon. The Eleventh Circuit rejected Greer’s argument, 798 Fed. Appx. 483 (2020), while the Fourth Circuit agreed with Gary’s argument, 954 F. 3d 194 (2020)."

The Court's Holding

The Supreme court indicated that Greer and Gary did not bring up their claims under Rule 51(a). The right move would have been for them to "inform[] the court of the claimed error when the relevant court ruling or order is made or sought." But they did not. This made them subject to the Plain error analysis. Someone seeking to bring forth plain error would need to prove the following three things: "First, there must be an error. Second, the error must be plain. Third, the error must affect “substantial rights,” which generally means that there must be “a reasonable probability that, but for the error, the outcome of the proceeding would have been different." (there is a fourth part of the plain error test but we will not get there).

Both sides agreed that there were errors that were plain. This meant that the court was to "address the third prong: "whether the Rehaif errors affected the defendant's 'substantial rights.'" "Greer has the burden of showing that, if the district court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. And Gary has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty."

The court indicated that the defendant faced an uphill climb proving this based on the argument that he did not know that he was a felon.

"The reason is simple: If a person is a felon, he ordinarily knows he is a felon...Of course, there may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms... But if a defendant does not make such an argument or representation on appeal, the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a “reasonable probability” that the outcome would have been differ- ent absent the Rehaif error...Those prior convictions are substantial evidence that they knew they were felons. Neither defendant has ever disputed the fact of their prior convictions. At trial, Greer stipulated to the fact that he was a felon. And Gary admitted that he was a felon when he pled guilty. Importantly, on appeal, neither Greer nor Gary has argued or made a representation that they would have presented evidence at trial that they did not in fact know they were felons when they possessed firearms. Therefore, Greer cannot show that, but for the Rehaif error in the jury instructions, there is a reasonable probability that a jury would have acquitted him. And Gary likewise cannot show that, but for the Rehaif error during the plea colloquy, there is a reasonable probability that he would have gone to trial rather than plead guilty."

The Supreme Court found their arguments unavailing. The court stated that in felon in possession of a weapon cases, a Rehaif error is not a basis for plain error relief unless the defendant advances evidence that indicates that he did not know if he was a felon.

If they advance that argument, the court has to determine if they showed a reasonable probability that the outcome would have been different. Greer and Gary did not do that so they did not meet the plain error test.

The court found in favor of the government.

Jeremy's Notes:  What Should Attorneys Do Now?

One of the newsletters that I received recently indicated that one of the takeaways from all of this was for to the accused person, and their lawyers, to object often. Greer and Gary were both found guilty BEFORE Rehaif. While they might have been objecting against a "solid wall of circuit authority," the holding here implies that it would have been appropriate to object in order to protect the record.