Case o' The Week: Benamor, Encore - Benamor, Plain Error, and Rehaif Claims

  A felon, 

   charged with "felon in possession," 

      with a "felon in possession" prior, 

         may have known he was a felon.

United States v. Benamor, 2019 WL 4198358 (9th Cir. June 6, 2019, amend. Sept. 5, 2019), decision available here.

 

Hon. Judge Susan Graber

Players: Decision by Judge Graber, joined by Judges Bybee and DJ Harpool.  

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *2. He went to trial on § 922(g) charges, and stipulated that he was a felon. Id. at *5. Benamor was convicted and appealed. Id. at *2.

  In the original opinion, Judge Graber denied Benamor’s challenge based on a failure to instruct on the “antique firearm” aspects of the statute. See COTW blog here. 

  Benamor then filed a petition for rehearing, arguing that – under Rehaif – there was insufficient evidence for a conviction because the government failed to prove he knew he was a felon when he possessed the old shotgun. Id. at *5. (Rehaif was decided after Benamor was convicted).

Issue(s): Under plain error review, was there "a probability that, but for the [Rehaif] error, the outcome of the proceeding would have been different"? Id. at *5. Did "this error in not instructing the jury to make such a finding affect Defendant’s substantial rights or the fairness, integrity, or public reputation at trial"? Id. 

Held: “[T]he third and fourth prongs of the plain-error test are not met. Here, there is no probability that, but for the error, the outcome of the proceeding would have been different. . . . When Defendant possessed the shotgun, he had been convicted of seven felonies in California state court, including three felonies for which sentences of more than one year in prison were actually imposed on him. The felonies included one case in which Defendant sustained convictions for being a felon in possession of a firearm and a felon in possession of ammunition; he was sentenced to five years and eight months in prison. Defendant spent more than nine years in prison on his various felony convictions before his arrest for possessing the shotgun. At a minimum, the prior convictions for being a felon in possession of a firearm and being a felon in possession of ammunition proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.” Id. (italics in original).

Of Note: In the amended opinion, Judge Graber recounts the many ways in which she believes the government could have proved the Rehaif “knowledge” element (although, it bears noting, it did not). Specifically, the Court emphasizes Mr. Benamor’s previous felon in possession convictions (which Judge Grabers deems enough to “prove beyond a reasonable doubt” that Benamor knew of his status as a felon). This particular prior is an unfortunate criminal history for Mr. Benamor, but note that the opinion is not a per se rule for all felons with Rehaif claims. Depending on your client’s felony priors, a bit of light may still shine through this dark decision.

How to Use: Judge Graber seems tempted to hold that the mere fact of an old-school Old Chief stip to a felony prior “end[s] the discussion as to Defendant’s knowledge of his status as a felon.” Id. at *5. A close read of the opinion, however, reveals that the Ninth does not actually so hold. See id. 

  If your client does not have the regrettable fact of Benamor’s previous “felon in possession” conviction (and Benamor’s seven felony priors), don’t quite fold the tent yet on the Rehaif claims now perking in the Ninth – plain error will require a case-by-case analysis.

                                               

For Further Reading: Plain confused by plain error? For a very helpful outline written by experienced federal defense counsel, see “Plain-Error Review from Top to Bottom, or Slaying the Four-Headed Hydra,” available here.

Image of the Hon. Judge Susan Graber from https://usdchs.org/oral-histories/our-collection/susan-p-graber/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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