United States v. Johnson

979 F.3d 632

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

Amended October 26, 2020

ORDER

The opinion filed on June 25, 2020, and published at 963 F.3d 847, is amended by the opinion filed concurrently with this order.

With these amendments, the panel unanimously votes to deny the petition for panel rehearing. Judge Rawlinson and Judge Watford voted to deny the petition for rehearing en banc, and Judge Wallace so recommends. The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc, filed August 7, 2020, is DENIED.

No further petitions for panel rehearing or rehearing en banc will be entertained.

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 frames his argument on remand as a challenge to the sufficiency of the evidence. He contends that his § 922(g) convictions must be reversed because the government did not introduce sufficient evidence establishing that he knew of his status as a convicted felon. Johnson did not raise this challenge in the district court, which is not surprising. 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 decision in Rehaif first imposed that requirement after Johnson's trial concluded.

In our initial opinion on remand, we accepted Johnson's framing of the issue and analyzed his argument as a challenge to the sufficiency of the evidence. Because Johnson had not raised his sufficiency-of-the-evidence challenge in the district court, we reviewed his claim for plain error under Federal Rule of Criminal Procedure 52(b). See United States v. Johnson , 963 F.3d 847, 850 (9th Cir. 2020).

After we filed our opinion, Johnson petitioned for rehearing and rehearing en banc. In conjunction with that petition, we received a brief from amici curiae drawing our attention to United States v. Atkinson , 990 F.2d 501 (9th Cir. 1993) (en banc), a case that neither of the parties had previously cited. In Atkinson , our court held that a defendant who pleads not guilty and proceeds to a bench trial need not move for a judgment of acquittal in order to preserve a challenge to the sufficiency of the evidence. Id. at 503. "A motion to acquit is superfluous," we reasoned, "because the plea of not guilty has brought the question of the sufficiency of the evidence to the court's attention." Id. Because Johnson pleaded not guilty and was convicted following a bench trial, amici argued that we should have reviewed Johnson's sufficiency-of-the-evidence challenge de novo rather than under the plain-error standard. We asked the government and Johnson to submit a second round of supplemental briefs addressing the impact of Atkinson on the outcome of this appeal.

Having reviewed the parties’ submissions, we reaffirm our conclusion that Rule 52(b) ’s plain-error standard governs here. Our reasoning differs, however, from that offered in our original opinion.

We agree with the government that, although Johnson has framed his argument as a challenge to the sufficiency of the evidence, that is not in fact the correct way to conceive of it. Our court has held that a sufficiency challenge must be assessed against the elements that the government was required to prove at the time of trial. United States v. Kim , 65 F.3d 123, 126–27 (9th Cir. 1995) ; see United States v. Weems , 49 F.3d 528, 530–31 (9th Cir. 1995). Johnson does not contest that the government introduced evidence sufficient to satisfy each of the elements required for conviction at the time of his trial. Thus, Johnson's argument is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt—specifically, by omitting the knowledge-of-status element now required under Rehaif . The rule we announced in Atkinson therefore does not apply here.

In a bench trial, a district court's legal error regarding the elements of the offense is reviewed in the same way we review an erroneous jury instruction regarding the elements of the offense. United States v. Argueta-Rosales , 819 F.3d 1149, 1156 (9th Cir. 2016). A jury instruction that omits an element of the offense is reviewed for plain error if the defendant failed to object in the district court. Johnson v. United States , 520 U.S. 461, 465–66, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). That remains true even if "a solid wall of circuit authority" would have rendered any objection futile at the time of trial. United States v. Keys , 133 F.3d 1282, 1284, 1286–87 (9th Cir. 1998) (en banc). Under this framework, Johnson's failure to object at trial to the district court's omission of the knowledge-of-status element triggers review under the plain-error standard of Rule 52(b).

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. United States v. Benamor , 937 F.3d 1182, 1188 (9th Cir. 2019). 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.

Under the fourth prong, Johnson must show that the district court's error seriously affects the fairness, integrity, or public reputation of judicial proceedings. That requirement helps enforce one of Rule 52(b) ’s core policies, which is to "reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error." United States v. Dominguez Benitez , 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). As the Supreme Court has stated, Rule 52(b) authorizes courts to correct unpreserved errors, but that power "is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ " United States v. Young , 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady , 456 U.S. 152, 163 n.14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ).

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). For the...