United States v. Balde, No. 17-3337 (2d Cir. 2019)Annotate this Case
Defendant petitioned for rehearing in light of Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), which held that in prosecutions pursuant to 18 U.S.C. 922(g)(5)(A) and 924(a)(2), the government must prove that the defendant not only knowingly possessed a firearm, but also knew that he or she was unlawfully in the United States.
The Second Circuit held that the indictment's failure to allege explicitly that defendant knew he was unlawfully in the United States was not a jurisdictional defect. However, the court held that defendant demonstrated all four prongs of the plain error standard in the acceptance of his guilty plea, because the district court failed to advise defendant that the government would need to establish beyond a reasonable doubt at trial that he knew that he was illegally present in the United States, or to examine the record to determine whether there was a factual basis for finding such knowledge.
This opinion or order relates to an opinion or order originally issued on June 13, 2019.