Ninth Circuit Blog: Case o' The Week: Of Trials and Tribulations - Lamar Johnson, Rehaif, and Review of Convictions After Trial

The Ninth Circuit carefully limits its review to facts in the record, when considering a challenge to a conviction after trial.

(Facts in the appellate record, that is).

United States v. Lamar Johnson, 2020 WL 6268027 (9thCir. Oct. 26, 2020), decision available here.

Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace.

Hard-fought appeal by ND Cal AFPD Robin Packel.

Facts: The ND Cal. USAO refused Johnson a conditional plea, to preserve a suppression issue for appeal. See blog entry here, on first decision.

At the stip-facts § 922(g)(1) bench trial, the government failed to prove that Johnson knew of his status of a convicted felon. 2020 WL 6268027, *2.

The Ninth denied the appeal of the denial of the suppression motion.

After Johnson filed a petition for cert., the Supreme Court G.V.R.’ed the case back to the Ninth on the Rehaif issue. Id.

Issue(s): “[ ] Johnson’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.” Id. at *3. “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, 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.” Id. at *4.

Held: “[W]e think it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—in assessing whether Johnson has satisfied the fourth prong of plain-error review.” Id.

“[ ] [W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. In a case like this one, in which the error under review involves omission of an element of the offense, the record on appeal will often not disclose what additional evidence the government would introduce 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. “In this case, the record on appeal contains additional evidence the government would introduce to prove that Johnson knew of his status as a convicted felon. And given the overwhelming and uncontroverted nature of that evidence, Johnson cannot show that refusing to correct the district court's error would result in a miscarriage of justice.” Id.

“We conclude that such evidence will ordinarily preclude a defendant from satisfying the fourth prong of plain-error review when challenging the district court's failure to require the government to prove that the defendant knew of his status as a convicted felon.” Id.

Of Note: Amicus curiae flagged United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993) (en banc). In Atkinson, the Ninth held that a defendant who proceeded to a bench trial did not need to move for a judgment of acquittal to preserve a challenge to the sufficiency of the evidence.

Judge Watford avoid Atkinson by re-characterizing Johnson’s challenge, changing it from “sufficiency of the evidence”, to a “claim that the district court applied the wrong legal standard in assessing his guilt.” Id. at *3.

Whether convincing or not, this distinction will likely prove critical in future “missing element” challenges.

How to Use: Johnson salvages trial conviction based on facts outside of the trial record. That grim new approach does arguably have an internal limitation. Judge Watford writes that this approach applies in cases where the record on appeal reveals the necessary, and uncontroverted fact. Id. at *5 (emphasis added). If there’s any dispute over the fact fitting the missing element, this Plain Error Fourth Prong gambit should not save the conviction.

For Further Reading: Rehaif challenges suffered a double-whammy this week. In United States v. Singh, Judge Milan Smith rejected a mens rea Rehaif challenge – cementing “knowingly” as the mental state required for the prohibited-person status. See 2020 WL 6304898 (9th Cir. Oct. 28, 2020), decision available here.