Uphold Gun Conviction Even Though the Law Changed, Biden Administration Urges Supreme Court

April 20, 2021 Updated: April 21, 2021

The Biden administration urged the Supreme Court to uphold the felon-in-possession gun conviction of a man even though a high court ruling after the conviction added an additional element to the crime.

The case is United States v. Gary, court file 20-444. The government’s petition seeking high court review of the 4th Circuit Court of Appeals decision was granted Jan. 8.

The petitioner, Michael Andrew Gary, was represented in the 48-minute telephonic hearing on April 20 by Jeffrey L. Fisher. The Department of Justice was represented by Jonathan Y. Ellis. The hearing immediately followed oral arguments at the Supreme Court in a similar case, Greer v. United States, court file 19-8709. It’s possible the court will issue a single opinion covering both cases.

Gary was charged with possessing a firearm while a felon, contrary to federal law. When he entered his guilty plea, the district court advised him that this charge required proof that he had a prior felony conviction, according to Gary’s brief.

“But, in line with the unanimous view of the federal courts of appeals at the time, the court did not advise Mr. Gary that the charge required proof that he knew that his prior conviction barred him from possessing a firearm.”

While this case was pending on appeal, the Supreme Court rejected the circuits’ understanding of the felon-in-possession statute, holding in Rehaif v. United States (2019) that the government must prove a defendant both knew that he possessed a firearm and that he was forbidden to possess one.

Gary then asked the 4th Circuit to vacate his guilty plea.

Although he hadn’t objected during the plea process to the district court’s omission of the knowledge-of-status element, Gary argued that the district court’s Rehaif ruling-related error rendered his plea invalid. The 4th Circuit agreed and vacated his plea.

During oral arguments on April 20, attorney Fisher said “the due process error here requires automatic reversal.”

“A core aspect of the autonomy every defendant must be afforded is the ability to decide whether to contest the government’s allegations, or instead to relinquish one’s physical liberty without trial and submit to a term of imprisonment,” Fisher said.

“Failing to advise the defendant of the complete charge against him necessarily deprives him of the ability to make that grave choice knowingly and intelligently.

“Indeed, it would trample the framers’ vision of free will to enforce a guilty plea where the only facts the defendant admitted do not even constitute a crime, and where having now been advised of the true nature of the charge, the defendant wants to contest it.”

A skeptical Justice Brett Kavanaugh confronted Fisher.

“The 5th Circuit said, well, convicted felons typically know they’re convicted felons. Judge [J. Harvie] Wilkinson said, ‘Felony status is simply not the kind of thing that one forgets,’” Kavanaugh said.

“It seems odd to throw out all the convictions if you accept that premise, so, do you accept the premise that convicted felons typically know they’re convicted felons?”

The question should be whether the defendant, at the time he pled guilty, understood that felony status was part of the charge, Fisher said. “In Rehaif, seven of the justices of this court thought that the element was quite important, and in fact, it separated wrongful from innocent conduct.”

“Another way to put our submission is that the defendant should at least have the opportunity to decide for himself whether to agree to wrongful conduct and submit to a term in prison.”

But government lawyer Ellis suggested this wasn’t a close case.

“Being convicted of a felony is not the sort of life event that one is ordinarily unaware of or forgets,” Ellis said.

“The respondent possessed the weapons at issue here. He’d been convicted of seven different crimes punishable by more than a year in prison. He’d spent multiple years in prison. He’d been released months before. He knew that he was not supposed to possess a gun.”

Justice Elena Kagan challenged Ellis.

“How would he even know what to object to if he didn’t know anything about what the crime was? I mean, how can a defendant make the choice to plead guilty if he doesn’t know what he’s pleading to?”

Fisher concluded his case, saying, “We’ve become so accustomed to our system of guilty pleas that I understand the temptation that the court may have to think of this case as involving a request for relief based on a violation of something of a formalistic requirement of criminal procedure.”

But this case “involves the most fundamental of principles and the most sensitive of practices: a conviction without a trial. Indeed, because of the stakes involved for individuals and the fear of government abuse, as the court knows, the concept of a guilty plea itself was largely unknown to the framers.”

“So we’re obviously not asking the court to second-guess the modern development of the guilty plea system, but what we are saying is that an indispensable requirement of a conviction obtained in this matter is fair notice of the true charge and especially of any element like the mens rea element here, which separates wrongful conduct from innocent conduct, so a defendant can at least make an intelligent decision whether to surrender his liberty without even putting the government to its proof.

“However hazy that principle may appear in the mire of procedural debates … that we’ve had today, no constitution designed to secure freedom can function without honoring that fair notice concept.”