United States v. Johnson

963 F.3d 847

UNITED STATES of America, Plaintiff-Appellee,

v.Lamar JOHNSON, Defendant-Appellant.

No. 17-10252

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2020 San Francisco, California

Filed June 25, 2020

Robin Packel (argued), Assistant Federal Public Defender; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender Oakland, California; for Defendant-Appellant.

Alexis J. Loeb (argued) and Philip Kopczynski, Assistant United States Attorneys; Merry Jean Chan, Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

On Remand From the United States Supreme Court, D.C. No. 3 :16-cr-00251-WHA-1

Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

OPINION

WATFORD, Circuit Judge:

When this case was last before us, we affirmed Lamar Johnson's convictions for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Johnson , 913 F.3d 793 (9th Cir. 2019). After we issued our opinion, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). There, the Court held that a defendant may be convicted under § 922(g) only if the government proves that the defendant "knew he belonged to the relevant category of persons barred from possessing a firearm"—in our case, those convicted of a crime punishable by more than one year of imprisonment. Id. at 2200. Johnson filed a petition for certiorari in which he argued for the first time that the government failed to prove at trial that he knew of his status as a convicted felon. The Supreme Court granted his petition, vacated the judgment, and remanded the case for further consideration in light of Rehaif . ––– U.S. ––––, 140 S. Ct. 440, 205 L.Ed.2d 250 (2019).

Following remand, we received supplemental briefs from the parties and heard oral argument. After considering the parties’ contentions regarding the effect of Rehaif , we again affirm Johnson's convictions.

The background facts may be briefly summarized. The government charged Johnson with various drug and firearms offenses, including two counts of being a felon in possession of a firearm. Johnson moved to suppress the firearms and other evidence found during searches of his home and car. The district court denied the motion. To facilitate appellate review of that ruling, Johnson waived his right to a jury trial and agreed to proceed with a stipulated-facts bench trial. In lieu of calling witnesses, the parties submitted a written stipulation describing the agreed-upon facts, which included, as relevant here, that two different firearms were found in Johnson's possession on separate dates and that, prior to the dates in question, he "had been convicted of a felony, i.e. , a crime punishable by imprisonment for a term exceeding one year." On the basis of the stipulated facts, the district court found Johnson guilty of violating 18 U.S.C. § 922(g)(1).

Johnson did not argue in the district court that the evidence was insufficient to sustain his convictions, which is understandable. At the time of Johnson's trial, our circuit's law did not require the government to prove that a defendant knew of his status as a convicted felon. See United States v. Miller , 105 F.3d 552, 555 (9th Cir. 1997). The Supreme Court's intervening decision in Rehaif has of course changed the law in that regard. Nevertheless, because Johnson did not raise his sufficiency-of-the-evidence challenge in the district court, we review that challenge for plain error under Federal Rule of Criminal Procedure 52(b). See United States v. Benamor , 937 F.3d 1182, 1188 (9th Cir. 2019).

To establish plain error, Johnson must show that (1) there was an error, (2) the error is clear or obvious, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. The government concedes that the first two prongs are met: The district court erred by not requiring the government to prove Johnson's knowledge of his status as a convicted felon, and that error is now clear following Rehaif . We will further assume without deciding that the district court's error affected Johnson's substantial rights, thereby satisfying the third prong. Only the fourth prong remains in dispute.

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. The factual stipulation submitted by the parties does not state whether Johnson knew he had been convicted of a crime punishable by imprisonment for more than a year. It merely states, as a matter of historical fact, that Johnson had previously been convicted of "a crime punishable by imprisonment for a term exceeding one year." Without more information about the nature of the crime or the length of the sentence imposed, a rational trier of fact would be hard pressed to infer that Johnson knew of his prohibited status as required under Rehaif . And that failure of proof might well be deemed to affect the fairness or integrity of the judicial proceedings resulting in his convictions. See United States v. Cruz , 554 F.3d 840, 851 (9th Cir. 2009).

As Johnson correctly notes, when deciding whether sufficient evidence supports a conviction, our review ordinarily is confined to the evidence submitted to the trier of fact. We ask whether "the record evidence adduced at the trial" was sufficient to permit a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see United States v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). The same standard frames our review of sufficiency-of-the-evidence challenges under the plain-error standard as well. See United States v. Flyer , 633 F.3d 911, 917 (9th Cir. 2011).

One of the plain-error cases on which Johnson relies, United States v. James , 987 F.2d 648 (9th Cir. 1993), starkly illustrates application of the rule limiting review to the evidence adduced at trial. In that case, the defendant stipulated to the federally insured status of the victim bank, but the prosecutor forgot to read the stipulation to the jury. We reversed the defendant's conviction because, as a result of the prosecutor's mistake, the trial record lacked any evidence to support an essential element of the crime—even though, we assumed, undisputed proof of that element existed in the form of the defendant's own stipulation. Id. at 650–51. (We did not explicitly state that we were applying plain-error review, but Rule 52(b) undoubtedly governed given that the defendant had not raised his sufficiency-of-the-evidence challenge in the district court. See id. at 654 (Alarcon, J., dissenting).)

The rule confining our review to the trial record, as applied in James , is derived from the dictates of the Double Jeopardy Clause. If the government introduces insufficient proof at trial to sustain a conviction, a retrial at which the government could cure the evidentiary deficiency is not permitted; instead, the defendant is entitled to reversal of his conviction and entry of a judgment of acquittal. See Burks v. United States , 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). As we stated in United States v. Weems , 49 F.3d 528 (9th Cir. 1995), "the ‘core’ of the Double Jeopardy Clause's prohibition on multiple prosecutions is denying the prosecution a second opportunity ‘to supply evidence which it failed to muster in the first proceeding.’ " Id. at 531 (quoting Tibbs v. Florida , 457 U.S. 31, 41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ). Thus, even when a defendant challenges the sufficiency of the evidence for the first time on appeal, the validity of the defendant's conviction must rise or fall on the record submitted to the trier of fact, and no retrial will follow if the government's evidence is found wanting.

There is an exception to this general rule, however, and it applies in the circumstances present here. We held in Weems that the Double Jeopardy Clause does not bar a retrial when the government's evidence was sufficient to sustain a conviction at the time of trial, but has subsequently been rendered insufficient due to an intervening change in the law. Id. In Weems , the government introduced sufficient evidence to sustain a conviction under the law as it stood at the time of trial, but the Supreme Court subsequently held that the charged offense required proof of an additional knowledge element. Id. at 530. We noted that "[t]he government had no reason to introduce such evidence because, at the time of trial, under the law of our circuit, the government was not required to prove that a defendant knew that structuring was illegal." Id. at 531. In those circumstances, we concluded, the Double Jeopardy Clause does not bar a retrial because the government "is not being given a second opportunity to prove what it should have proved earlier." Id.

The exception established in Weems applies here because the evidence submitted during the stipulated-facts bench trial was more than sufficient to support Johnson's convictions under the law existing at the time of trial. The evidence was rendered insufficient only by the Supreme Court's subsequent decision in Rehaif , which means the government would be permitted to retry Johnson. In our view, the fact that a retrial is authorized distinguishes this case from James and permits us 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.

Under the fourth prong, Johnson must show...