United States v. Johnson, No. 17-10252 (9th Cir. 2020)
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On remand from the Supreme Court, the Ninth Circuit filed an amended opinion affirming defendant's convictions for being a felon in possession of a firearm, and an order denying a petition for panel rehearing and denying on behalf of the court a petition for rehearing en banc.
The panel reaffirmed its conclusion that Federal Rule of Criminal Procedure 52(b)'s plain error standard governs here. The panel explained that defendant's argument is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt—specifically, by omitting the knowledge-of-status element now required under Rehaif v. United States, 139 S. Ct. 2191 (2019), which was issued after the panel issued its original opinion in this case. Here, the government conceded that the first two prongs of plain error are met: the district court erred by not requiring the government to prove defendant's knowledge of his status as a convicted felon, and the error is clear following Rehaif. The panel also assumed without deciding that the error affected defendant's substantial rights.
The panel stated that it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—in assessing whether defendants have satisfied the fourth prong of plain error review. Given the overwhelming and uncontroverted nature of the evidence, defendant cannot show that refusing to correct the district court's error would result in a miscarriage of justice.
Court Description: Criminal Law On remand from the Supreme Court, the panel filed (1) an amended opinion affirming the defendant’s convictions for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and (2) an order denying a petition for panel rehearing and denying on behalf of the court a petition for rehearing en banc. After the panel issued its original opinion, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that a defendant may be convicted under § 922(g) only if government proves that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm”—in this case, those convicted of a crime punishable by more than one year of imprisonment. The Supreme Court granted the defendant’s petition for certiorari and remanded for further consideration in light of Rehaif. The panel wrote that the defendant’s argument on remand is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt—specifically, by omitting the knowledge-of-status element now required under Rehaif. The panel applied the plain-error review standard under Fed. R. Crim. P. 52(b), and noted that the government conceded that the first two prongs are met: the district court erred by not requiring the UNITED STATES V. JOHNSON 3 government to prove the defendant’s knowledge of his status as a convicted felon, and that the error is now clear following Rehaif. The panel assumed without deciding that the district court’s error affected the defendant’s substantial rights, satisfying the third prong. The panel wrote that only the fourth prong—as to which the defendant must show that the district court’s error seriously affected the fairness, integrity, or public reputation of judicial proceedings—remained in dispute. The panel explained that this requirement helps enforce one of Rule 52(b)’s core policies, which is to reduce wasteful reversals by demanding strenuous exertion to get relief for unreserved error. In assessing whether the defendant satisfied the fourth prong, the panel concluded that it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—because the record on appeal in this case contains evidence the government would introduce to prove that the defendant knew of his status as a convicted felon. The panel concluded that given the overwhelming and uncontroverted nature of that evidence, the defendant cannot show that refusing to correct the district court’s error would result in a miscarriage of justice.
This opinion or order relates to an opinion or order originally issued on January 9, 2019.
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