Sunday, June 28, 2020

Case o' The Week: Feeling Weemish After Conviction Affirmed - Lamar Johnson (II) and Scope of Review for Sufficiency of Evidence Challenges


 The Ninth never goes fishing beyond the trial record, when reviewing a sufficiency-of-evidence challenge to a conviction.

The Hon. Judge Paul Watford
 (Well, almost never).
United States v. Lamar Johnson, 2020 WL 3458969 (9th Cir. June 25, 2020), decision available here.

Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace. 
  Hard fought appeal by N.D. Cal AFPD Robin Packel.

Facts: To preserve a suppression challenge, Johnson went through a stipulated facts trial in a §922(g)(1) case, and appealed. Id. at *1. The Ninth upheld the denial of the suppression motion. See generally Johnson blog entry here.  
   While Johnson’s cert. petition was underway, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif required the government to prove that a defendant knew he belonged to a class of persons prohibited from possessing a gun (in this case, the class being “felons.”) Id. at *1. That fact was not proved in Johnson’s stip fact trial.
   The Supreme Court GVR’ed Johnson’s cert. petition. In his second Ninth visit, Johnson challenged the government’s failure to prove the Rehaif knowledge element in the stip facts bench trial. Id. at *2. The Ninth Circuit first held that, because Johnson did not challenge the sufficiency of evidence in the bench trial, it was required to conduct “plain error” review. Id.

Issue(s): “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, [whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings], we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong. The factual stipulation submitted by the parties does not state whether Johnson knew he had been convicted of a crime punishable by imprisonment for more than a year. It merely states, as a matter of historical fact, that Johnson had previously been convicted of ‘a crime punishable by imprisonment for a term exceeding one year.’ Without more information about the nature of the crime or the length of the sentence imposed, a rational trier of fact would be hard pressed to infer that Johnson knew of his prohibited status as required under Rehaif. And that failure of proof might well be deemed to affect the fairness or integrity of the judicial proceedings resulting in his convictions.” Id.

Held: “[W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. To be sure, in most cases involving unpreserved sufficiency-of-the evidence challenges, the portions of the record on appeal outside the trial record will be irrelevant to the analysis. In the ordinary case, as in James, a retrial will not be permitted if the government’s evidence is found insufficient, so the validity of the defendant’s conviction must be judged based on the trial record alone. Even in cases subject to the exception created in [United States v. Weems, 49 F.3d 528 (9th Cir. 1995)], the record on appeal will often not disclose what additional evidence the government might possess to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.Id. at *5.

Of Note: The Ninth relies on the ’95 Weems decision, which carves out an exception to that rule when there is an intervening change in the law after the government’s original proof at trial. Note Judge Watford takes pains to limit the scope of this exception, id. at *5, -- but those limitations are small solace in this Rehaif decision.

How to Use: Johnson does not hold that all Rehaif challenges are doomed. Mr. Johnson had the unfortunate burden of three prior felonies, with years of prison time. If your client doesn’t have a similar record (suggesting knowledge of a felony prior) you may be able to dodge this Weems dodge in your Rehaif challenge.
AUSA Jason St. Julien
                                               
For Further Reading: How does it feel to be a black AUSA, watching Black Lives Matter protests?
  For a remarkable and courageous piece by AUSA Jason St. Julien, see this Denver Post editorial, here 











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

.

Labels: , , ,

4 Comments:

Blogger FitnessLover said...

Kraken Not Able to Login or Withdrawal and Deposit Issue phone number Kraken Funds Not Showing call kraken support number +1-847-868-3847 for Exchange Withdrawal and Deposit Issue phone number.

Tuesday, June 30, 2020 4:59:00 AM  
Blogger FitnessLover said...

Atomic Wallet Support Number +1-847-868-3847 Is overseen by the New York State Department of Financial Services, which conducts oneself as a trusted company — meaning it can serve to average cryptocurrency buyers and sellers like you and me, also, big-time institutional investors.
For more information call Kraken support number +1-847-868-3847.

Tuesday, June 30, 2020 4:59:00 AM  
Blogger Unknown said...

GreenAddress is a wallet that can be arrived at on the web, however can't be exchanged legitimately. That is the reason we partition it as an online cryptographic money wallet. On account of GreenAddress, this is an application that can be downloaded and afterward positioned on your work area. The crypto coins would then be able to be put away safely and can be effectively sent again when helpful. It is in this way unrealistic to exchange straightforwardly on GreenAddress. For this you should initially send the coins to another trade, after which you can begin exchanging. For customer support contact GreenAddress Phone Number {+1(810) 355-4365}. GreenAddress Phone Number

Thursday, July 02, 2020 11:48:00 PM  
Blogger Unknown said...

Gemini is one of only a handful few crypto trades to give institutional level guardianship administrations to crypto resources. That implies this trade has a ton of benefits in its virtual vault, and the greater part of those advantages are put away disconnected in a cool wallet for safety.Gemini has set itself in the incorporated versus decentralized security banter. While Gemini advances its controlled and cold wallet arrangements and cautions against utilizing private wallets as "your computerized bedding", ongoing digital currency tricks are trying speculator trust in trades. For customer support contact our Grmini Phone Number [+(856) 254-3098] . Gemini Phone Number

Friday, July 03, 2020 4:02:00 AM  

Post a Comment

<< Home