Greer v. U.S.: Court sets standard for plain error relief under Rehaif
People seeking plain error relief for “Rehaif claims” must show they did not know they were convicted felons and that there is a reasonable probability the result of their proceedings would have been different, the U.S. Supreme Court held June 14 in Greer v. United States.
In 2019, the Court, in Rehaif v. United States, ruled that in federal felon-in-possession cases the Government must prove the defendant knew he was a felon when he possessed the firearm.
Gregory Greer and Michael Gary were separately convicted of felon-in-possession charges before Rehaif was decided.
Greer was convicted at a trial. He did not request – and the district court did not give – a jury instruction that he knew he was a felon.
Gary pleaded guilty. At his plea colloquy, the district court judge did not advise him that, if he went to trial, a jury would have to determine he knew he was a felon.
Both Greer and Gary raised a “Rehaif claim” on appeal as plain error.
The Eleventh Circuit rejected Greer’s argument. The Fourth Circuit agreed with Gary’s argument.
The Supreme Court, in an 8-1 opinion, held that Greer and Gary were not eligible for plain error relief.
“[A]ll agree that Rehaif errors occurred during both defendants’ district court proceedings,” the Court said. But the question is whether the errors affected their “substantial rights.”
A defendant “faces in uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon” because “[i]f a person is a felon, he ordinarily knows he is a felon,” the Court said.
“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,” the Court said.
“In felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon,” the Court said. “When a defendant advances such an argument or representation on appeal, the court must determine whether the defendant has carried the burden of showing a ‘reasonable probability’ that the outcome of the district court proceeding would have been different.”
Greer had the burden to show that, if the district court had correctly instructed the jury on the mens rea element of being a felon, there is a reasonable probability he would have been acquitted, the Court said.
Gary had the burden to show that, if the district court had correctly advised him on this element, there is a reasonable probability he would not have pleaded guilty.
“Because Greer and Gary did not make any such argument or representation on appeal, they have not satisfied the plain-error test,” the Court concluded.
Justice Sotomayor concurred in part, and dissented in part. She agreed Greer cannot show that the trial error affected his substantial rights, but she would have remanded Gary’s case for a determination by the lower court whether the error affected his substantial rights.
She also said the Court’s opinion “should not be read to create a legal presumption that every individual convicted of a felony understands he is a felon.”