United States v. Gary

PLAIN-ERROR OR HARMLESS-ERROR REVIEW?

The United States argues that Federal Rule of Criminal Procedure 52(b)’s plain-error review applies to Rehaif errors, or errors in which a trial court found that a defendant had unlawfully possessed firearms under 18 U.S.C. 922(g) without also determining whether the defendant knew of their status as a felon under the statute. Brief for Petitioner, United States at 7, 25. The United States contends that the Court does not have the jurisdiction to make an exception to Rule 52(b) for Rehaif errors, noting that the Court previously stated in Johnson v. United States, that an exception to Rule 52(b) was “an exception which [the Court] ha[s] no authority to make.” Id. at 27.

The United States further argues that Rehaif errors do not qualify for an exception to plain-error review because Rehaif errors are not “structural.” Id. at 28. Firstly, the United States notes that structural errors are only found in a few limited cases including “denial of counsel of choice, denial of self-representation, denial of a public trial, and denial of a reasonable-doubt instruction.” Id. at 29. The United States argues that Rehaif errors do not meet any of the features used to identify an error as structural because structural errors are typically difficult to measure, have fundamentally unfair results, or exist in cases where the right is created to protect the defendant from an error besides wrongful conviction. Id. at 30–31. Here, the United States notes, the error can be measured using the evidence, the admission, and the benefits of pleading guilty. Id. at 31. The result of Rehaif errors, the United States argues, is not always fundamentally unfair because the degree of harm varies based on the facts of the case. Id. at 32. The United States further contends that Rehaif errors do not interfere with a defendant’s autonomy because the decision to make a guilty plea is still the defendant’s even if an error occurs, further illustrating that Rehaif errors are not structural. Id. at 33. Additionally, the United States argues that Rehaif errors that a defendant does not object to at the trial level are subject to the requirements of plain-error review even if they are structural errors. Id. at 34. While the United States acknowledges that the Court has never addressed this specific issue, the United States maintains that the term “structural error” does not hold special significance requiring a court to avoid plain-error review, and that guilty pleas should generally be honored in the interest of finality. Id. at 34–35.

Gary counters that Rule 52(a)’s harmless-error review should apply in this case rather than Rule 52(b)’s plain-error review. Brief for Respondent, Michael Andrew Gary at 8–9. Gary notes that he had not made an objection in district court because at the time, courts did not require proof “that a defendant knew of his status as a person barred from possessing a firearm.” Id. at 8. Since the Court created this requirement in Rehaif, Gary argues that he should be able to raise this argument on appeal while using the ordinary harmless-error review rather than plain-error review. Id. at 11. Gary further contends that it would be unfair to penalize defendants for failing to object when the law at the time would preclude any relief on a particular claim. Id. at 12. Gary notes that plain-error review is designed to only deal with errors “so obvious” that trial judges and prosecutors were neglectful in not addressing them even without any objection. Id. at 16. Gary further acknowledges that it makes sense to require an objection at the trial level in cases in which there is a circuit split, but he distinguishes circuit splits from cases in which all the circuits have rejected the argument. Id. at 16.

Gary also counters that a Rehaif error is a structural error because it is difficult to measure the resulting harm, they always have fundamentally unfair outcomes, and the right at issue is meant to protect an interest other than wrongful conviction. Id. at 22. The resulting harm, Gary argues, is difficult to measure because it is impossible to know whether the same guilty plea would have occurred if Gary had full knowledge of the elements of the crime. Id. at 29. While the United States argues that harm can be measured using the evidence and admissions at the trial level, Gary contends that the trial record may have been different if he had been correctly informed of the elements of the crime. Id. at 29–30. Gary further argues that Rehaif errors are structural errors because they are fundamentally unfair. Id. at 35. Gary contends that it is fundamentally unfair to enforce an admission for a defendant who did not have notice of a “critical mens rea element of the charged offense” because the defendant will have never understood the charge against him. Id. at 34–35. Gary also argues that Rehaif errors are structural errors because they violate the defendant’s right to personal autonomy and that, in his case, the error deprived him of autonomy by preventing him from making a “knowing and voluntary” plea. Id. at 22, 26.

CASE-SPECIFIC SHOWING OF PREJUDICE

The United States argues that Gary should not receive plain-error relief under Federal Rule of Criminal Procedure 52(b) because Gary cannot show that the court’s failure to advise him of the element of the crime caused him prejudice or seriously affected the fairness of the proceeding. Brief for Petitioner at 15–16. The United States notes that in cases in which the defendant does not timely object to an error, the court of appeals engages in plain-error review which requires the defendant to prove that there was a reasonable probability that the proceeding outcome would be different but for the alleged error. Id. at 17. The United States argues that this showing is required even for constitutional errors. Id. at 18. Specifically, the United States contends that Supreme Court precedent establishes that standard appellate review is used for “elements-related plea-colloquy errors” that allegedly violate a defendant’s constitutional rights. Id. at 19. The United States acknowledges that a showing of prejudice would be unnecessary in cases in which plea colloquy is completely absent, but argues that cases in which a court excludes one element from plea colloquy are distinguishable from cases in which a court avoids plea colloquy entirely. Id. at 21–22. Whereas in the latter, appellate courts would have to “‘presume’ a nonexistent waiver of rights in order to affirm the conviction,” the United States notes that in cases where only one element is missing, an appellate court must merely decide whether knowledge of the additional element would have reasonably affected a defendant’s decision. Id. at 22–23. The United States also puts forth that the error does not affect the fairness of the judicial proceedings because Gary was unlikely to win at trial, so honoring his pretrial plea is a fair outcome. Id. at 23–24.

Gary counters that if the plain-error doctrine applies, Gary does not need to make a case-specific showing of prejudice. Brief for Respondent at 40. Gary notes that appellate courts may consider plain errors that “affect[] substantial rights” regardless of whether the issue was raised at the trial level. Id. at 41. Gary argues that structural errors, such as the omission of the element from his plea colloquy, “affect substantial rights” even in cases in which the defendant does not provide a case-specific showing of prejudice. Id. at 42. In support of this, Gary notes that every court of appeals opinion on this issue has ruled that structural errors automatically satisfy the “affects substantial rights” requirement of plain-error review. Id. at 40. Gary also argues that the omission seriously affected the fairness of the proceedings by violating the defendant’s right to take notice of the charge against him. Id. at 43. Gary notes that notice is of fundamental importance for a defendant’s due process rights and, thus, the trial court violated his due process rights by omitting a “crucial” element of the offense from the plea colloquy. Id. at 43–44. Gary further argues that preserving the plea would damage public perception of the courts because Gary was not offered the opportunity to present a defense on the omitted element. Id. If the Court does decide that case-specific prejudice is required, Gary argues that the case should be remanded, so that the Fourth Circuit Court of Appeals can examine whether case-specific prejudice was present. Id. at 46.