Plain Error and Rehaif

After the U.S. Supreme Court's decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), when the government prosecutes a person on a felon-in-possession charge under 18 U.S.C. § 922(g)(1), it must prove that the person knew s/he previously had been convicted of a felony. But Rehaif hasn't been much help to most defendants previously convicted under section 922(g)(1). Add Gregory Raymore to that list.

A grand jury indicted Raymore, and a jury convicted him, before the Supreme Court decided Rehaif. The indictment didn't allege that he knew he previously had been convicted of a felony, and the jury instructions didn't ask the jury to decide that.

On appeal, Raymore challenged the indictment's sufficiency and the jury instructions in light of Rehaif. He hadn't objected below, though, so the Sixth Circuit reviewed the issues only for plain error.

In an opinion by Judge Nalbandian, with a concurrence from Judge Moore, the court affirmed Raymore's conviction. Given Rehaif, the court concluded that there was error, and the error was plain. But the error didn't affect Raymore's substantial rights, because he couldn't show a reasonable probability that the outcome would have been different. The court focused on two points. First, Raymore stipulated to to his prior felony convictions, which the court said was "strongly suggestive" that he knew he was a felon. Second, Raymore twice before had been convicted on felon-in-possession charges. Those convictions made it "near-impossible for him to contest knowledge of his status as a felon in this case."

Judge Moore disagreed that Raymore's stipulation suggested that he knew he was a felony at the time of the offense--after all, the stipulation said only that he had a previous felony conviction, not that he knew about it. But she agreed that Raymore's previous felon-in-possession convictions "almost certainly would establish that Raymore knew, at the time of his arrest in this case, that he was a convicted felon."