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The Habeas Citebook: Prosecutorial Misconduct

Eleventh Circuit Vacates Firearm Conviction Based on Rehaif

Based on Rehaif v. United States, 139 S. Ct. 2191 (2019) (“Rehaif II”), the U.S. Court of Appeals for the Eleventh Circuit vacated Oniel Christopher Russell’s conviction of possessing a firearm and ammunition as an immigrant unlawfully in the U.S. in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2).

Russell arrived in the U.S. on October 29, 2008, as an authorized nonimmigrant visitor. In February 2012, Vanessa Hood — a U.S. citizen — filed a Form I-130, Petition for Alien Relative, seeking to classify Russell as her spouse. The U.S. Citizenship and Immigration Services (“CIS”) approved her petition in July 2012. Russell then filed a Form I-485, Application to Register Permanent Residence or Adjust Status. But Hood subsequently requested her petition be withdrawn after discovering that Russell was still married to another woman in Jamaica.

In October 2016, CIS canceled Hood’s I-130 application and Russell’s I-485 application.

But in the intervening period, on August 24, 2013, police discovered during a traffic stop a loaded Ruger firearm in the glove compartment of a vehicle driven by Russell. He gave a sworn statement claiming ownership of the Ruger, and he was released without being arrested. Then in December 2017, Russell was charged with the §§ 922(g) and 924(a)(2) offenses based on possession of the loaded Ruger.

The Government moved, in limine, to exclude evidence of the immigration forms submitted to CIS by Hood and Russell. He argued during the hearing on the motion that he “would never be here illegally;” that he toured the world as an artist; and that like every other citizen he paid taxes, had credit cards and a driver’s license, owned a business, and had a bank account. The documents were evidence that he “had started the ball rolling” and were necessary to his right to present a complete defense.

The Government, relying on United States v. Rehaif, 868 F.3d 907 (11th Cir. 2017) (“Rehaif I”), argued that Russell’s subjective belief about his immigration status was irrelevant as to his guilt of the charged offenses. The U.S. District Court for the Middle District of Florida noted that, per Rehaif I, whether someone is in the U.S. illegally is an “objective standard,” so if “someone believes they’re here legally, that doesn’t change the fact[] that they either are or are not here legally.” The Government’s motion was granted, and the evidence was excluded. Russell was convicted, and he appealed on grounds unrelated to Rehaif I.

While Russell’s appeal was pending, the U.S. Supreme Court decided Rehaif II, which reversed Rehaif I. The Supreme Court held in Rehaif II that “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” The Eleventh Circuit then directed Russell and the Government to submit supplemental briefing on how Rehaif II affected this case.

Because the issue wasn’t properly preserved in the district court, the Eleventh Circuit reviewed for plain error, which required Russell to show (1) an error (2) that was obvious (3) affected his substantial rights, and (4) affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Cotton, 535 U.S. 625 (2002). An error affects substantial rights if there is a reasonable probability, absent the error, the outcome of the proceeding would have been different. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016).

The Court observed that the district court’s exclusion of the CIS documents based on the conclusion that Russell’s subjective belief about his immigration status was irrelevant was obvious error in light of Rehaif II. The error affected his substantial rights because there was little, if anything, in the record to establish that the Government had proven Russell knew he was in the U.S. illegally, i.e., that he knew he “belonged to the relevant category of persons barred from possessing a firearm.” And the CIS documents were evidence from which a jury could have concluded he believed he was in the U.S. legally. And the error affected the fairness, integrity, and public reputation of the judicial proceedings because Russell was prevented from presenting a complete defense and the Government had secured a conviction without being required to prove Russell’s subjective knowledge of his immigration status, the Court concluded. Thus, the Court ruled that the district court’s exclusion of the CIS documentary evidence was plain error.

Related legal case

United States v. Russell

 

 

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