Monday, July 1, 2019

Rehaif v. United States: Scienter separates "wrongful from innocent" conduct

Under federal law, certain people cannot possess firearms based on their status: felons, fugitives, those lacking legal immigration status, and so forth. See 18 USC sec. 922(g).  Previously, the Tenth Circuit held that to convict someone of this crime, the only mens rea required was "knowledge that the instrument possessed is a firearm.” The government did not have to prove that the person knew of their ineligible status.

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Justice Breyer
But that changed with the Supreme Court's decision in Rehaif v. United States last week, in a 7-2 opinion by Justice Breyer.:
We hold that the word "knowingly" applies both to the defendant's conduct and to the defendant's status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.
Rehaif was convicted of possessing a firearm while he was in the country without legal immigration status, under sec. 922(g)(5). He had been here on a student visa, but that lapsed. At trial, the jury was instructed that the "United States is not required to prove" that Rehaif "knew that he was illegally or unlawfully" in the United States. He was convicted, and the Eleventh Circuit upheld the conviction.

The Supreme Court did not agree. Emphasizing the text of the statute, the Court required the presumption of scienter to separate "wrongful from innocent" conduct.
It is therefore the defendant's status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach.
The Court offered two examples:
If the provisions before us were construed to require no knowledge of status, they might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is "punishable by imprisonment for a term exceeding one year."
To break it down, Rehaif requires that the government prove in a felon-in-possession case, that,

1) the person had a prior disqualifying felony (punishable by more than one year in prison) and 
2) that the person knew that they were convicted of a  disqualifying felony at the time of the alleged possession.

These are not the same element. Proof that the person was convicted of a felony years before is not the same as proof that they knew they were a felon at the time of the possession.  Someone may have been convicted of a felony, but then believed they could have a gun once they were off supervision. Or they may have been told they were convicted of a felony, but that conviction does not disqualify because it was not punishable by more than one year in prison.

With Rehaif,  the grand jury must find as an element that the defendant actually knew their status at the time of the possession; it must be alleged in the indictment as an element; and the jury must be so instructed.

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Justice Alito
Justice Alito and Thomas dissented, and angrily so. The dissent seemed less concerned about whether the decision was correct and more concerned about the fallout.
The decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge . . . 
Let's hope so.

-- Melody

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