Issues
May a circuit court of appeals review matters outside the trial record when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States?
This case asks the Supreme Court to consider the proper evidentiary scope of plain-error review under Rule 52(b) of the Federal Rules of Civil Procedure and the bounds of the reviewing court’s discretion to provide the defendant a remedy for such an error. A jury found the petitioner, Gregory Greer, guilty of possessing a firearm as a felon. However, the prosecution did not prove to the jury that Greer knew about his felony status—a fact that the Supreme Court subsequently held is an element that the prosecution must prove. On review, the appellate court found that there was no plain error in Greer’s case because he had stipulated to his felony status before the jury trial. Greer contends that the appellate court could not consider evidence on plain-error review that was not presented to the jury at trial, given the text of Rule 52 and Greer’s constitutional rights to trial by jury and due process. The United States responds that a reviewing court may look to matters outside the trial record in order to determine whether an error at trial meets the requirements that allow the court to exercise its remedial discretion, such as whether the error prejudiced the outcome of the trial or adversely affects the reputation of the judicial proceedings. The outcome of the Supreme Court’s decision will have important implications for matters of fundamental fairness and the balance between judge and jury.
Questions as Framed for the Court by the Parties
Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity, or public reputation of the trial.
Facts
In August 2017, police officers engaged Petitioner Gregory Greer in conversation outside of a hotel room in Jacksonville, Florida. United States v. Greer, 798 Fed. Appx. 483, 484–85 (2020). After observing Greer touch the right side of his waistband several times, the officers informed Greer that they would conduct a pat-down search. Id. Greer fled immediately down the hotel hallway while continuing to grab the right side of his body. Id. at 485. Two officers pursued Greer and heard a thud as an object struck the ground. Id. A third officer located a Colt .45 caliber pistol on the nearby landing. Id. After apprehending Greer, the officers determined that the pistol fit into an empty holster affixed to the right side of Greer’s waistband. Id.
Greer was indicted, under 18 U.S.C. § 922(g), for being a felon in possession of a firearm. United States v. Greer, Mid. District at 1. Before trial, Greer stipulated that at the time of his alleged possession of the pistol, he had already been convicted of a felony punishable and that he was not authorized to own or possess a firearm. United States v. Greer, 789 Fed. Appx. at 485. The district court admitted Greer’s stipulation into evidence during trial. Id. The district court’s jury instructions provided that the prosecution must prove beyond a reasonable doubt that Greer “knowingly possessed a firearm in or affecting interstate or foreign commerce” and, “before possessing the firearm, [Greer] had been convicted of a felony, a crime punishable by imprisonment for more than one year.” Id. The jury found Greer guilty. Id. The presentence report detailed Greer’s five prior felony convictions, a record that Greer did not dispute. Id.
Greer appealed his conviction to the Eleventh Circuit Court of Appeals on the grounds that 18 U.S.C. § 922 was unconstitutional because the statute did not require the prosecution to prove that the firearm had a substantial effect on interstate commerce. United States v. Greer, 753 Fed. Appx. 886, 886 (2019). The court found that precedent foreclosed the Greer’s assertion and affirmed his conviction and sentence. Id. Greer then filed a petition for certiorari to the United States Supreme Court requesting review. United States v. Greer, 789 Fed. Appx. at 484.
While Greer’s petition for certiorari was pending, the Supreme Court held in Rehaif v. United States that, under 18 U.S.C. § 922(g), the prosecution “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.” Id. at 486. In light of its decision in Rehaif, the Supreme Court vacated the Eleventh Circuit’s judgment in Greer’s case and remanded for reconsideration. Id. at 484.
On remand, Greer argued that the Eleventh Circuit should vacate his conviction, or alternatively grant him a new trial, because the indictment had failed to allege that he knew he was a felon when he possessed the pistol and because the jury did not consider this new element of 18 U.S.C. § 922(g). Id. at 484. The Eleventh Circuit reviewed the trial court record for plain error. Id. at 485. The Eleventh Circuit found that Greer had established plain errors because the trial court did not instruct the jury that the prosecution must prove that Greer knew he was a felon. Id. at 486. Nevertheless, the Eleventh Circuit also found that Greer had failed to prove that the error had affected his substantial rights because the presentence report demonstrated that Greer knew of his status as a felon. Id. The Eleventh Circuit thus affirmed Greer’s conviction a second time. Id. Greer filed another petition for certiorari, which the Supreme Court granted on January 8, 2021.
Analysis
SCOPE OF PLAIN-ERROR REVIEW
Petitioner Gregory Greer argues that in determining the effect of a lower court’s error, the text of Rule 52 of the Federal Rules of Civil Procedure limits an appellate court’s review to the trial record itself. Brief for Petitioner, Gregory Greer at 9. Greer contends that the differences between subsections (a) and (b) of Rule 52—governing “harmless” and “plain” errors, respectively—dictate the burden of proof assigned to the parties and the discretion granted to appellate courts in granting relief, rather than the scope of review. Id. Greer asserts that the scope of review depends on the nature and context of the error, not on whether that error is classified as “harmless” or “plain.” Id. at 10. Citing United States v. Olano, Greer argues that because both subsections employ the same language, both standards must involve the same type of inquiry. Id. at 12–13. Under either inquiry, Greer maintains, the appellate court’s review is limited: the question “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. at 14. While the Supreme Court in Olano indicated that the text of Rule 52 suggests that the remedy for plain error is discretionary, Greer argues that Rule 52 only applies to how an appellate court decides to remedy an error, not the scope of its review. Id. at 16. Greer further contends that the enactment of Rule 52 was intended to codify existing law stated in Wiborg v. United States and Clyatt v. United States, which looked to the trial record when reviewing the sufficiency of evidence on plain-error review. Id. at 11–12. Greer argues that the Court’s subsequent precedents also support this limited review, and that the Eleventh Circuit mischaracterized prior cases to justify looking beyond the trial record. Id. at 15, 16. For example, Greer refutes the applicability of the “whole record” language in United States v. Vonn, a Rule 11 case regarding the validity of defendant’s guilty plea. Id. at 18-19. In guilty plea cases, Greer maintains, the appellate court may expand the scope of review because evidence of the defendant’s state of mind before trial is crucial to whether the defendant entered a valid plea, and because the plea results in a less extensive record. Id. at 18. Greer asserts that in contrast, Rule 52 concerns whether the prosecution has met its burden “to convince the trier of fact of all the essential elements of guilt.” Id. As such, Greer argues, the scope of plain-error review must be limited to the information presented at trial. Id.
Respondent United States of America counters that Rule 52 does not mandate that an appellate court look only to the trial record on plain-error review. Brief for Respondent, United States of America at 31. The United States maintains that there are key differences between harmless-error review under Rule 52(a) and plain-error review under Rule 52(b). Id. The United States asserts that the standard for plain-error review is substantially more restrained because it includes the additional requirement that the error adversely affect the fundamental fairness or integrity of the judicial proceedings. Id. The United States contends that the harmless-error cases Greer relies on are therefore not analogous to the case at hand; further, they do not support the proposition that harmless-error review is limited to the trial record. Id. The United States notes that in Wiborg and Clyatt, for example, the Court considered the entire record and “corrected the . . . error only after finding no evidence at all to support a necessary element.” Id. at 29. Likewise, the United States argues that the Court’s subsequent jurisprudence explicitly rejects the contention that the appellate court is precluded from looking to evidence not presented to the jury. Id. at 30. The United States also counters Greer’s characterization of Vonn. Id. at 20–21. While courts may frequently broaden their inquiry beyond the trial record in Rule 11 cases, the United States argues, it does not follow that courts are therefore limited to the evidence presented at trial in cases where the defendant does not plead guilty. Id. at 21. The United States maintains that in both contexts, reviewing courts must be allowed to examine the record as a whole in order to determine whether an error was prejudicial. Id. at 17.
CONSTITUTIONAL RIGHTS AND JUDICIAL DISCRETION
Greer asserts that the Eleventh Circuit’s consideration of evidence outside the trial record violated his Sixth Amendment right to trial by jury. Brief for Petitioner at 20. Greer argues that under the Sixth Amendment, the task of “finding the facts essential to lawful imposition of the penalty” is reserved exclusively to the jury, while the role of appellate court is merely to review convictions for prejudicial error. Id. at 21. Greer notes that the Sixth Amendment also provides “numerous procedural protections designed to ensure that the evidence on which a verdict rests is reliable and trustworthy,” including rules that limit the jury’s consideration of evidence to that admitted at trial. Id. at 24. As such, Greer argues, the appellate court cannot determine whether trial errors affected the jury verdict if the jury never saw those materials. Id. at 20.
Greer further contends that the broad scope of the Eleventh Circuit’s inquiry infringed on his Fifth Amendment right to due process, which provides that a defendant may be convicted only upon proof of “every fact necessary” to determine his guilt beyond a reasonable doubt. Brief for Petitioner at 21–22. Greer argues that the Eleventh Circuit’s use of evidence not presented at trial therefore unconstitutionally relieved the prosecution of its burden. Id. at 25. In addition, Greer asserts that the Constitution guarantees a defendant the “meaningful opportunity to present a complete defense.” Id. at 23. Greer notes that at the time of his trial, the Supreme Court had yet to require that the prosecution prove that Greer knew of his felony status for his gun possession charge; therefore, Greer lacked the opportunity to refute his own knowledge of that status and present a complete defense. Id. Greer argues that the lack of evidence as to this new element—along with the trial court’s failure to instruct the jury about the element—affected his substantial rights, meeting an essential requirement of plain-error review. Id. at 28. Greer additionally contends that because this error undermined the fundamental principles of the criminal judicial system, the Eleventh Circuit was obligated to vacate his conviction and grant him a new trial. Id. at 31–32.
The United States responds that an appellate court does not violate a defendant’s Fifth or Sixth Amendment rights when it considers evidence not presented to the jury, because the court is not obligated to provide a remedy for an unpreserved right. Brief for Respondent at 32–33. When a defendant has waived a right by failing to make a timely objection, the United States asserts, a court “may for that reason refuse to consider [his] constitutional objection” on appeal, regardless of its merit. Id. at 14. The United States contends that the language of Rule 52 clearly suggests that the remedy for a plain error is up to the reviewing court’s discretion, which it “may” exercise upon a showing that the error has (1) had a prejudicial effect on the outcome of the trial, and (2) “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 15, 16. The United States argues the court, not the jury, is equipped to go beyond the trial proceedings to consider any “broader systemic effect that justifies excusing the defendant’s forfeiture.” Id. at 31. As such, the United States contends, the court’s decision whether to exercise its discretion in remedying an unpreserved error does not “usurp” the jury’s duties in violation of the Sixth Amendment. Id. at 31. The United States notes that this inquiry is made on a “case-specific and fact-intensive basis.” Id. at 14–15. In Greer’s case, the United States argues, it is unlikely that a different jury instruction or additional evidence about Greer’s knowledge of his own felony status would have changed the outcome of the trial, given that the jury could infer that Greer knew of his status because he fled from police. Id. at 39–40. The United States asserts that the information presented to the jury was sufficient to support the inference that Greer was aware of his felony status, and therefore the Eleventh Circuit was correct to affirm Greer’s conviction. Id. at 39.
Discussion
FAIRNESS AND ACCURACY OF CRIMINAL CONVICTIONS
The National Association of Criminal Defense Lawyers (“NACDL”), in support of Greer, argues that permitting the prosecution to introduce new evidence on plain-error review would strip defendants of their rights and would thereby create additional errors. Brief of Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”), in Support of Petitioner at 5. The NACDL claims that plain-error review’s purpose would instead be furthered by requiring the prosecution to retry the case and to present to the jury evidence on every element required to reach a guilty verdict. Id. The NACDL further maintains that permitting an appellate court’s clarification of the law to relieve the prosecution of its burden of proof would contradict the corrective purpose of plain-error review. Id. The NACDL argues that fairness requires preventing the prosecution from introducing new evidence, otherwise it would create a double standard that prejudices defendants because this limit has long been applied to defendants on appeal. Id. at 5–6.
The United States counters that empowering appellate courts to examine the whole record on plain-error review helps ensure the fundamental fairness of judicial proceedings. Brief for Respondent, United States of America at 24. The United States argues that allowing access to record information such as a presentence report furthers the interests of justice because that information pertains to the court’s plain-error review and possesses high standards of reliability. See id. at 35–36. The United States asserts that preventing such review would force courts to make judicial determinations in isolation from potentially relevant facts in the record and lead to unjust outcomes. See id. The United States further maintains that defendants’ concerns about unfairness are particularly attenuated in the context of a Rehaif claim, where the defendant often chooses to stipulate to their felony status before trial in order to prevent the prosecution from telling the jury more about that felony status. See id. at 34–35.
CONSTITUTIONAL IMPLICATIONS FOR DEFENDANTS
The NACDL argues, in support of Greer, that allowing the prosecution to introduce new evidence on plain-error review would undermine defendants’ Fifth Amendment due process right and Sixth Amendment right to a jury trial. Brief of NACDL at 7. The NACDL asserts that the Eleventh Circuit’s ruling threatens due process rights by relieving the prosecution of the obligation to prove every element at trial beyond a reasonable doubt and depriving defendants of the opportunity to establish their innocence. See id. at 9, 11–12. The NACDL contends that shifting this burden would force defense counsel to anticipate and object to any form of new evidence that could potentially be introduced on plain-error review, lest they forfeit their clients’ rights on appeal. Id. at 13. The NACDL argues that upholding the Eleventh Circuit’s ruling would diminish defendants’ Sixth Amendment rights by usurping the jury’s foundational role of factfinder and reassigning its purview to the judge. See id. at 8–10. The NACDL argues this shift would damage the criminal law and weaken the public’s confidence in the fundamental fairness of the criminal process. See id. at 7–8. The NACDL further maintains that weakening these protections would upend the constitutional order by prioritizing the prosecution’s interest in securing a conviction over the ensuring the rights of the accused. Id. at 10.
The United States contends that the Eleventh Circuit’s holding upheld the longstanding principle that a court may exercise discretion when considering claims for relief that are not timely filed and would otherwise have been forfeited. Brief for Respondent at 13–15. The United States argues that this principle of forfeiture encourages timely raising of concerns before the district court and upholds the value of finality, while avoiding injustice that could arise from an overly mechanical rejection of all claims not timely raised. Id. at 15. The United States further maintains that limiting plain-error review to the trial record could incentivize defendants to complicate the task of the factfinders by remaining silent at trial in order to keep damaging facts out of the trial record and later appellate review. See id. at 19. The United States claims that allowing the appellate court to examine the entire record buttresses the proper constitutional balance between the judge and jury because plain-error review relates to second-order procedural issues that fall outside the jury’s domain. See id. at 33.
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Acknowledgments
Additional Resources
- Jack Rodgers, Biden’s Justice Department Submits Three High Court Briefs, Courthouse News Service (Mar. 24, 2021).