Tuesday afternoon’s oral argument in Rehaif v. United States was not, as a formal matter, about the well-known “felon-in-possession” provision of 18 U.S.C. §§ 922(g) and 924(a)(2). It was supposed to be about a much less commonly charged provision, which makes it a federal crime to possess a firearm while in the United States illegally. On Tuesday, however, the justices seemed to operate on the premise that, if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily also require the government to prove that an ex-con with a firearm knew he was an ex-con.
A reversal of Hamid Rehaif’s conviction, then, would appear to have significant practical consequences. At argument, as expected, Justice Neil Gorsuch signaled his adherence to the view he held while on the U.S. Court of Appeals for the 10th Circuit — that the government is required to prove the defendant’s knowledge of his culpable status, whether as an unauthorized immigrant or an ex-con. Justice Brett Kavanaugh signaled that he too holds that view. Only Justice Samuel Alito showed clear agreement with the government’s position that such status elements should be treated the same as jurisdictional elements, which require no mens rea, or criminal intent.
Petitioner Hamid Mohamed Ahmed Ali Rehaif entered the United States on an F-1 student visa to study at the Florida Institute of Technology in August 2013. Under immigration law, he retained his student-visa status only so long as he remained enrolled as a full-time student. Eventually, he failed most of his classes, and the school academically dismissed him. Instead of leaving the country, however, he took up residence in a Florida hotel. One day he went to a nearby shooting range, renting a Glock to shoot for an hour and buying ammunition.
Rehaif was eventually convicted on two counts of possessing a firearm while being in the United States illegally, in violation of Sections 922(g)(5)(A) and 924(a)(2). The district court had refused to instruct the jury that the government was required to prove that Rehaif knew he was in the country illegally. The U.S. Court of Appeals for the 11th Circuit affirmed.
Assistant to the Solicitor General Allon Kedem faced withering fire from Gorsuch. “[H]ere we’re talking about the only thing that separates not just innocent conduct but constitutionally protected conduct … knowledge of the status, that I am a felon. As you well know, I had a case where the fellow was told by the judge that he was not a felon when he was convicted. And yet he was put in jail for 10 years afterwards because the government didn’t have to prove that he knew his status.” (Gorsuch was referring to United States v. Games-Perez, a 10th Circuit case from 2012.)
Later, Gorsuch pressed Kedem on Kedem’s claim that practical consequences weighed against requiring the government to prove the defendant’s knowledge of his status, given that such proof will be easy in the vast majority of cases. “There is a small but significant number of cases where, gee, it’s really going to be a colorable question and, therefore, a burden on the government,” said Gorsuch.
“So our argument is not that it’s a burden on the government,” replied Kedem. “Sometimes it will be, but usually it won’t. And, in any event, we’re not asking for your sympathy. Our point is that you risk shifting the focus of all felon-in-possession trials out of a concern for a category of cases that, if they exist, is extraordinarily small.”
“That does seem like you’re asking for our sympathy, with all respect,” said Gorsuch. “What is the practical consequence argument then if it isn’t the burden on the government?”
“It’s that it will be deeply confusing to the jury,” said Kedem. “Imagine you are a juror and you are at a felon-in-possession trial. And all of a sudden the judge, the witnesses, the lawyers, all start talking about a prior crime totally unrelated. And under the best of circumstances that sort of ‘trial within a trial’ can be deeply confusing.”
Kedem had an equally difficult time with Kavanaugh. “How is the defendant blameworthy if he or she truly thought that the status was lawful and then possesses the gun? Just focus on that question,” said Kavanaugh. “How is that person blameworthy?”
Kedem replied, “So I’m not sure that they are, but I think the more –”
“Well, okay, let me stop you there,” Kavanaugh broke in. “Then why should that person be subject to 10 years in prison?” Kedem responded with a question of his own, namely, whether Congress would have concerned itself with that small subset of cases. Kavanaugh agreed that the subset was small, but was not satisfied.
“[B]ut there are going to be those cases,” he continued, “the delta of cases where the defendant truly was mistaken about his or her status … and yet you would put that person in prison for up to 10 years.”
Justice Ruth Bader Ginsburg was clearly focused on the collateral effects of a reversal. Not far into the argument of Rehaif’s advocate, Rosemary Cakmis, Ginsburg said, “[A]s a practical matter I think I’m right that most of these possession cases are felon-in-possession cases.”
When Cakmis agreed, Ginsburg said, “And if that’s right and you prevail, then how many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said … I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.”
“[H]abeas is not nearly as simple to navigate as a criminal proceeding,” Cakmis responded. “And once you reach the land of habeas, you have cause and prejudice that have to be shown for procedural default. It’s even harsher than harmless error when you get into the habeas world. And so the number of people who might want to ask for relief might be more, but there is only a small but significant number of people out there who actually had a genuine dispute.”
Ginsburg asked essentially the same question of the government’s lawyer, Kedem. “I would like to know your view of — let’s just say we would reverse — the collateral review issue that I asked about.”
“So the government’s view is that under Bousley [v. United States], the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status,” replied Kedem.
Although the felon-in-possession provision dominated Tuesday’s hearing because the government uses it so much more often than the unauthorized-immigrant provision, there was some discussion of a politically salient hypothetical involving immigrants. When Alito asked Cakmis whether she really thought Congress meant to exempt unauthorized immigrants who “had every reason to know” they were in the country illegally but somehow still did not actually know, Cakmis brought up the DREAM Act.
“[T]ake, for example, the dreamers, children who come into this country with their parents illegally, live here all their lives and think they’re law-abiding citizens, only to find out later in adulthood that they never were law-abiding citizens. … [I]f that person who had no idea he was here illegally or unlawfully possessed a gun, he would be subject to 10 years in prison,” she said.
Almost as soon as Kedem began his argument, Justice Sonia Sotomayor brought that hypothetical right back up. “What do you do with that dreamer example of a student who got a visa from a certified institution and all of a sudden, unbeknownst to him or her, the school is decertified? And so they’re no longer in status. … [D]o you think Congress intended to include those innocent people as well?”
“I acknowledge that application of the government’s test in certain hypothetical examples that we could come up with would produce harsh results,” Kedem stated. “And perhaps you’re not comforted by the fact that this provision is applied many thousands of times every year, and no one has been able to identify an example like the type you’ve raised or anything close to it.”
Kedem later responded in much the same way to Justice Stephen Breyer’s hypothetical of a student who unwittingly overstayed his visa and yet possessed a gun. “Respectfully, Justice Breyer, if you reinterpret the mens rea for every 922(g) offense out of concern for that hypothetical category of people, that is worse than letting the tail wag the dog. That is letting the tail wag the dog where the dog is massive and the tail is tiny and largely hypothetical.”
Editor’s Note: Analysis based on transcript of oral argument.