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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13459
____________________
ISAAC SEABROOKS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:18-cv-22446-BB,
1:14-cr-20558-BB-1
____________________
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2 Opinion of the Court 20-13459
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY,∗ Dis-
trict Judge.
PER CURIAM:
Isaac Seabrooks, a federal prisoner, appeals the district
court’s denial of his timely
28 U.S.C. § 2255 motion to vacate. In
his motion, Seabrooks challenged his felon-in-possession convic-
tion, arguing that the district court erred when it instructed the jury
on aiding and abetting even though the government failed to prove
that Seabrooks knew his co-defendant was a convicted felon. After
reviewing the briefs and with the benefit of oral argument, we re-
verse the district court’s denial of Seabrooks’s § 2255 motion, va-
cate Seabrooks’s felon-in-possession conviction, and remand for
further proceedings consistent with this opinion.
I
A. Factual Background
We begin with a description of Seabrooks’s charges and trial.
Because this Court provided a thorough discussion of the trial on
direct appeal, we present only a brief overview and supplement.
See United States v. Seabrooks,
839 F.3d 1326, 1329–31 (11th Cir.
2016).
∗ Honorable Anne C. Conway, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
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20-13459 Opinion of the Court 3
In 2014, a federal grand jury returned a two-count indict-
ment that charged Seabrooks and his co-defendant Nigel Butler
with one count of being a felon in possession of a firearm and am-
munition, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)(1)
(Count 1) and one count of possessing a stolen firearm and ammu-
nition, in violation of
18 U.S.C. § 922(j) (Count 2). Although Butler
pleaded guilty to both counts, Seabrooks proceeded to trial.
At trial, the government’s witnesses testified to the follow-
ing facts. On July 23, 2014, Butler, who was driving a stolen Cadil-
lac while Seabrooks was in the front passenger’s seat, pulled into a
parking lot in Grapeland Park. As he entered, Butler rolled down
his window and parked next to a green truck. After another car left
the parking lot, Butler exited the Cadillac, broke into the passenger-
side door of the truck, removed several items, placed them inside
the Cadillac, and drove away. Meanwhile, Seabrooks never exited
the Cadillac.
Shortly after they left, Butler and Seabrooks returned to the
parking lot and remained in the Cadillac. When they tried to leave
again, police arrived. The police blocked their exit, ordered Butler
out of the vehicle, and arrested both men outside the Cadillac. Af-
ter Butler and Seabrooks exited the Cadillac, one of the officers
looked inside and saw three firearms. The officer testified that the
firearms were located: (1) on the driver’s side floorboard; (2) on top
of a cushioned backrest on the front passenger’s seat; and (3) be-
tween the driver’s seat and the front passenger’s seat. The firearm
on the front passenger’s seat was a semi-automatic pistol stored in
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4 Opinion of the Court 20-13459
a black gun pouch. The owner of the green truck later confirmed
that the firearms were his.
Seabrooks made several statements after his arrest. First,
when an officer approached Seabrooks to identify his fingerprints
with a portable device, Seabrooks asked about the device. The of-
ficer told Seabrooks that the device was for identification and that
it would be used to see if Seabrooks touched a gun. Seabrooks re-
sponded: “Oh, well, I touched the little gun, Officer . . . . You’ll find
my fingerprints on the small gun.”
Later, during a post-Miranda interview, Seabrooks stated
that he took the firearms from Butler and placed them in the con-
sole of the Cadillac. Seabrooks explained that Butler handed him a
black pouch and that he opened the pouch and noticed it contained
a semi-automatic pistol. However, Seabrooks asserted that he
“[didn’t] want no guns around [him], period,” so he put the gun
and pouch in the center armrest.
During the same interview, Seabrooks stated that he did not
know Butler intended to steal firearms from the green truck. Alt-
hough Seabrooks acknowledged that he remained in the Cadillac
while Butler broke into the truck and handed him firearms, Sea-
brooks nevertheless contended that he neither got out of the car
nor participated in the theft. When an officer informed Seabrooks
that he was being charged with being a felon in possession of a fire-
arm, Seabrooks adamantly stated that he did not “possess” any of
the firearms because he only incidentally handled one firearm be-
fore quickly stowing it away from his person.
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20-13459 Opinion of the Court 5
After the government presented the foregoing testimony,
the prosecutor read a stipulation to the jury. The stipulation ex-
plained that both Seabrooks and Butler had been convicted of fel-
ony offenses and that they were not legally allowed to possess a
firearm or ammunition.
At the charge conference, the government requested—and
the district court agreed to deliver, over Seabrooks’s objection—an
aiding and abetting instruction. Although the indictment did not
charge Seabrooks with aiding and abetting, the government asked
the district court whether the aiding and abetting instruction was
applicable to both of Seabrooks’s charges. The district court re-
sponded that the government could direct the jury to the instruc-
tion on both counts.
The district court’s aiding and abetting instruction stated:
It is possible to prove the Defendant guilty of a
crime even without evidence that the Defendant per-
sonally performed every act charged. Ordinarily, any
act a person can do may be done by directing another
person or agent or it may be done by acting with or
under the direction of others.
A defendant aids and abets another person if
the defendant intentionally joins with a person to
commit a crime.
A defendant is criminally responsible for the
acts of another person if the defendant aids and abets
the other person.
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6 Opinion of the Court 20-13459
A defendant is also responsible if the defendant
willfully directs or authorizes the acts of an agent, em-
ployee or other associate. But finding that a defendant
is criminally responsible for the acts of another person
requires proof that the defendant intentionally associ-
ated with or participated with the crime, not just
proof that the defendant was simply present at the
scene of a crime or knew about it. In other words, you
must find beyond a reasonable doubt that the defend-
ant was a willful participant and not merely a know-
ing spectator.
During closing arguments, the government primarily relied
on the aiding and abetting instruction in its rebuttal. 1 The prosecu-
tor argued:
Why did they have the window rolled down? So they
could communicate, so that you could sit there,
peacefully, look another way, look straight ahead,
and say: “There’s some weird lady behind us. Be
calm. All right. Go ahead.” That is aiding and
1 In its initial argument, the government stated:
He possessed, controlled all of those guns. He placed those
guns into the car. He received them from his codefendant, and
I would suggest to you that he aided -- not only did he possess
the firearms, but he aided and abetted Nigel Butler in stealing
those firearms and in possessing those firearms. We know
those guns were stolen, we know that he possessed them, and
we know that he aided Nigel Butler because he assisted him in
that robbery. . . .
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20-13459 Opinion of the Court 7
abetting. That’s why the instruction is there because
this story is obvious, and your common sense does
not get checked outside that door. He is a lookout.
He is helping this crime happen. But folks, the aiding
and abetting instruction that you have is only one
way of proving this case. There are two ways of prov-
ing this case. One is if, when you read the actual pos-
session instruction, and you say: Did he have those
guns? Did he really have those guns? Was he just cu-
rious? . . .
And I want to be very clear, when you go back to the
jury room; about the value of that aiding and abetting
instruction. One way of proving this case is solely on
the actual possession and constructive possession. If
you find that that has happened, that the Defendant
has actual possession of the gun, the Defendant is
guilty. You don’t have to consider aiding and abet-
ting. But if you, for whatever reason, have a question
about that, you can move on to aiding and abetting,
and you can determine did Nigel Butler help -- did
Isaac Seabrooks -- excuse me help Nigel Butler com-
mit this crime? And the answer is: Yes.
Following the government’s rebuttal, the jury began its de-
liberations. About two and a half hours later, the jury delivered a
question to the district court. The jury asked:
Are the following considered the same as possession:
– receipt of item
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8 Opinion of the Court 20-13459
– touch of item
– physical inspection of item
After consulting with the parties, the district court decided
to supplement its original possession instruction with language
from United States v. Edwards,
166 F.3d 1362 (11th Cir. 1999),
which Seabrooks had previously requested. The district court told
the jury:
Ladies and Gentlemen, you alone determine the facts
of this case. The Court has instructed you on the law
related to possession. It is contained in the verbatim
instructions, but I will read it again. “The law recog-
nizes several kinds of possession. A person may have
actual possession, constructive possession, sole pos-
session, or joint possession. Actual possession of a
thing occurs if a person knowingly has direct physical
control of it. Constructive possession of a thing oc-
curs if a person does not have actual possession of it,
but has the power and the intention to take control of
it later. Sole possession of a thing occurs if a person is
the only one to possess it. Joint possession of a thing
occurs if two or more people share possession of it.
The term possession includes actual, constructive,
sole, and joint possession.”
You have asked a specific question, and Ladies and
Gentlemen of the Jury, mere inspection, standing
alone, is not sufficient to establish possession. You
have been provided with all the law, and I ask that at
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20-13459 Opinion of the Court 9
this time you return to the jury room to continue
your deliberations.
Thirty-five minutes later, the jury reached a verdict—guilty
on both counts. However, the verdict form did not specify whether
the jury found Seabrooks guilty on Count 1 because he actually
possessed a firearm or because he aided and abetted Butler’s pos-
session of a firearm.
In 2015, the district court sentenced Seabrooks to
188 months’ imprisonment on Count 1 and 120 months’ imprison-
ment on Count 2 to run concurrently.2 Seabrooks’s direct appeal
followed.
B. Seabrooks’s Direct Appeal
Seabrooks contested his convictions and his 188-month sen-
tence on direct appeal. Seabrooks, 839 F.3d at 1332–45. In a pub-
lished opinion, we affirmed the district court and briefly addressed
Seabrooks’s challenge to the district court’s aiding and abetting in-
struction under Rosemond v. United States,
572 U.S. 65 (2014). In
Rosemond, the Supreme Court concluded that “an aiding and abet-
ting conviction requires not just an act facilitating one or another
element, but also a state of mind extending to the entire crime.”
2 As to Count 1, Seabrooks was sentenced as an armed career criminal under
18 U.S.C. § 924(e) rather than under § 924(a)(2). He was sentenced under
§ 924(a)(2) as to Count 2.
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10 Opinion of the Court 20-13459
Id. at 75–76 (explaining that the defendant’s “intent must go to the
specific and entire crime charged”).
Relying on Rosemond, Seabrooks asserted that the district
court erred when it gave the aiding and abetting instruction to the
jury even though the government had not presented evidence that
Seabrooks knew Butler was a convicted felon when the offense oc-
curred. However, because Seabrooks failed to raise his Rosemond
challenge at trial, we considered only whether the district court
plainly erred when it gave the aiding and abetting instruction. We
found no plain error because neither this Court nor the Supreme
Court had addressed the question of whether the government
must prove that the defendant knew the principal was a convicted
felon to sustain an aiding and abetting conviction under § 922(g),
and the circuits that had addressed the question disagreed. Sea-
brooks, 839 F.3d at 1337 (collecting cases).
C. Seabrooks’s § 2255 Motion and Appeal
Seabrooks subsequently filed a timely
28 U.S.C. § 2255 mo-
tion to vacate, set aside, or correct conviction and sentence.
Among other issues, Seabrooks again raised the government’s fail-
ure to demonstrate that Seabrooks knew Butler was a convicted
felon.
While Seabrooks’s motion was pending before the district
court, the Supreme Court issued its opinion in Rehaif v. United
States,
139 S. Ct. 2191 (2019). The Rehaif Court held that the gov-
ernment must prove that the defendant “knew he belonged to the
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20-13459 Opinion of the Court 11
relevant category of persons barred from possessing a firearm” in a
prosecution under
18 U.S.C. §§ 922(g) and 924(a)(2).
Id. at 2200.
Citing Rehaif, Seabrooks filed a notice of case-dispositive, interven-
ing decision before the district court ruled on his motion.
Seabrooks’s § 2255 motion was initially addressed by the
magistrate judge in a report and recommendation. The magistrate
judge recommended that the district court deny Seabrooks’s mo-
tion, in part because Seabrooks’s challenge to the aiding and abet-
ting instruction was procedurally barred. She specifically found
that Seabrooks’s challenge was procedurally barred because we
had decided the issue on direct appeal and Seabrooks had not
shown either that Rehaif constituted an intervening change in con-
trolling law or a miscarriage of justice. In analyzing this issue, the
magistrate judge concluded that Rehaif ’s rule is not a new rule of
constitutional law and that the Supreme Court had not applied Re-
haif retroactively.
Seabrooks objected to the report and recommendation. He
argued that the magistrate judge incorrectly applied the standard
for a second or successive § 2255 motion, rather than an initial
§ 2255 motion. Despite Seabrooks’s objection, the district court
adopted the report and recommendation, denied Seabrooks’s
§ 2255 motion, and refused to issue a certificate of appealability.
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12 Opinion of the Court 20-13459
Seabrooks timely appealed the district court’s order on his
§ 2255 motion and moved for a certificate of appealability. 3 We
granted Seabrooks’s motion for a certificate of appealability on one
issue:
Whether Rehaif v. United States,
139 S. Ct. 2191
(2019), applies retroactively to initial
28 U.S.C. § 2255
motions, such that Mr. Seabrooks could overcome
the procedural bar that otherwise would apply to
Claim 1, as it relates to Count 1, due to the fact that
this Court previously decided Claim 1 against
Mr. Seabrooks on direct appeal.
II
In evaluating a district court’s denial of a § 2255 motion, we
review legal conclusions de novo and factual findings for clear er-
ror. Brown v. United States,
942 F.3d 1069, 1072 (11th Cir. 2019)
(per curiam).
III
Seabrooks’s appeal raises three issues: (1) whether Rehaif ap-
plies retroactively to Seabrooks’s initial § 2255 motion; (2) whether
Seabrooks’s Rehaif claim is procedurally barred or procedurally
3 In his motion for a certificate of appealability, Seabrooks challenged only his
Count 1 felon-in-possession conviction. He did not contest his Count 2 con-
viction or sentence for possessing a stolen firearm; therefore, we do not ad-
dress Count 2 in this appeal.
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20-13459 Opinion of the Court 13
defaulted; and (3) whether the district court’s error in giving the
aiding and abetting instruction was harmless.
A. Rehaif applies retroactively to Seabrooks’s initial § 2255
motion.
The first issue is whether Rehaif applies retroactively to Sea-
brooks’s initial § 2255 motion. Although we have previously ana-
lyzed Rehaif in the context of an application for leave to file a sec-
ond or successive § 2255 motion pursuant to §§ 2255(h) and
2244(b)(3)(A), 4 we have yet to analyze a Rehaif claim brought in an
initial motion to vacate. See, e.g., In re Palacios,
931 F.3d 1314 (11th
Cir. 2019); In re Wright,
942 F.3d 1063 (11th Cir. 2019).
In the case on appeal, the parties agree that the district court
improperly relied on the statutory analysis for a second or
4 To file a second or successive motion to vacate, set aside, or correct a federal
sentence, a petitioner must first move in the appropriate court of appeals for
an order authorizing the district court to consider his successive motion.
28
U.S.C. § 2244(b)(3)(A). Such authorization may be granted only if the appellate
court certifies that the second or successive motion contains a claim involving:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to estab-
lish by clear and convincing evidence that no reasonable fact-
finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previ-
ously unavailable.
28 U.S.C. § 2255(h).
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14 Opinion of the Court 20-13459
successive § 2255 motion 5 and erroneously determined that Rehaif
did not apply retroactively to Seabrooks’s initial motion. The gov-
ernment specifically concedes that Rehaif applies retroactively to
initial § 2255 motions because a “Supreme Court decision that
changes the substantive reach of a statute by altering the range of
conduct or the class of persons that the statute punishes has retro-
active effect to cases on collateral review.”
Because Seabrooks’s conviction is final, he may only rely on
a “new rule” announced by the Supreme Court that applies retro-
actively when challenging his conviction. See Schriro v. Summer-
lin,
542 U.S. 348, 351 (2004). New substantive rules generally apply
retroactively. See
id. at 351. New substantive rules include both
“decisions that narrow the scope of a criminal statute by interpret-
ing its terms, as well as constitutional determinations that place
particular conduct or persons covered by the statute beyond the
[government’s] power to punish.”
Id. at 351–52 (citations and foot-
note omitted). Both new rules of statutory law and new rules of
constitutional law apply retroactively to an initial § 2255 motion
because they “necessarily carry a significant risk that a defendant
stands convicted of an act that the law does not make criminal or
faces a punishment that the law cannot impose upon him.” Id. at
352 (quoting Bousley v. United States,
523 U.S. 614, 620 (1998)) (in-
ternal quotation marks omitted).
5 See
id.
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20-13459 Opinion of the Court 15
In Rehaif, the Supreme Court held that the government
must prove the defendant knew both that he possessed a firearm
and that he belonged to a class of persons prohibited from pos-
sessing a firearm to sustain a § 922(g) (felon-in-possession) convic-
tion. Rehaif,
139 S. Ct. at 2200; see also In re Price,
964 F.3d 1045,
1049 (11th Cir. 2020). Before Rehaif, courts routinely held that the
government did not have to prove that the defendant knew he be-
longed to a prohibited class. See, e.g., United States v. Rehaif,
888
F.3d 1138 (11th Cir. 2018), rev’d
139 S. Ct. 2191 (2019). Conse-
quently, Rehaif ’s “new rule” alters the range of conduct or the
class of persons §§ 922(g) and 924(a)(2) are understood to punish.
See Rehaif,
139 S. Ct. at 2200; see also Schriro,
542 U.S. at 354 (“A
decision that modifies the elements of an offense is normally sub-
stantive rather than procedural. New elements alter the range of
conduct the statute punishes, rendering some formerly unlawful
conduct lawful or vice versa.”); In re Palacios, 931 F.3d at 1315–18
(Rosenbaum, J., concurring); In re Wright, 942 F.3d at 1065–69
(Rosenbaum, J., concurring).
As the Rehaif rule narrows the scope of §§ 922(g) and
924(a)(2) by interpreting the statutes’ terms and modifying the ele-
ments of the felon-in-possession offense, we find that Rehaif an-
nounced a new rule of substantive law that applies retroactively to
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16 Opinion of the Court 20-13459
Seabrooks’s initial § 2255 motion.6 See Schriro,
542 U.S. at 351–52,
354; see also Bousley,
523 U.S. at 620–21.
B. Seabrooks’s Rehaif claim is neither procedurally barred nor
procedurally defaulted.
While the government agrees that Rehaif applies retroac-
tively to initial § 2255 motions, it does not concede that Seabrooks
is entitled to relief pursuant to Rehaif. First, the government argues
that Seabrooks’s Rehaif claim is procedurally defaulted.
The terms “procedurally barred” and “procedurally de-
faulted” have distinct meanings. A procedural bar prevents a de-
fendant from raising arguments in a § 2255 proceeding that he
raised and we rejected on direct appeal. Stoufflet v. United States,
757 F.3d 1236, 1239 (11th Cir. 2014) (collecting cases). A defendant
can overcome a procedural bar when, as here, there is an
6 We note that the Rehaif Court’s analysis primarily relied on Congress’s use
of the word “knowingly” in § 924(a)(2) whereas Seabrooks was charged and
convicted under § 924(e)(1), which lacks an explicit mens rea requirement.
Compare
18 U.S.C. § 924(a)(2) (“Whoever knowingly violates subsection . . .
(g) . . . of section 922. . .”) with
18 U.S.C. § 924(e)(1) (“In the case of a person
who violates section 922(g) . . .”); see Rehaif,
139 S. Ct. at 2194–200; see also
Greer v. United States,
141 S. Ct. 2090, 2095 (2021). Ordinarily, § 922(g)(1) sets
forth the felon-in-possession offense, and § 924(a)(2) supplies the penalty for
that offense. However, if a defendant convicted under § 922(g) has three or
more prior convictions for serious drug offenses or violent felonies, he may be
subject to a sentencing enhancement pursuant to § 924(e). Although Sea-
brooks was charged and convicted pursuant to § 922(g) and § 924(e)(1) rather
than § 922(g) and § 924(a)(2), we need not consider this distinction because the
government did not brief it on appeal.
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20-13459 Opinion of the Court 17
intervening change in law. See Davis v. United States,
417 U.S. 333,
342 (1974).
By contrast, a “procedural default” occurs when a defendant
raises a new challenge to his conviction or sentence in a § 2255 mo-
tion. Lynn v. United States,
365 F.3d 1225, 1234 (11th Cir. 2004). If
a defendant fails to raise an issue on direct appeal, he may not pre-
sent the issue in a § 2255 proceeding unless his procedural default
is excused. McKay v. United States,
657 F.3d 1190, 1196 (11th Cir.
2011). To overcome a procedural default, a defendant must show
either (1) cause and prejudice, or (2) a miscarriage of justice, or ac-
tual innocence.
Id.
In our order granting Seabrooks’s motion for a certificate of
appealability, we asked whether Seabrooks could overcome the
procedural bar that otherwise would apply to his challenge to the
aiding and abetting instruction. However, it’s not clear to us that
the government raised this issue or argued that Seabrooks’s claim
is procedurally barred in its appellate brief. But even assuming it
adequately did so and that Seabrooks procedurally defaulted his
claim that the government had to prove that he knew Butler was a
convicted felon, any resulting procedural bar must be excused un-
der Davis v. United States,
417 U.S. 333 (1974), because Rehaif
caused an intervening change in the law.
But the government also contends that Seabrooks’s Rehaif
claim is procedurally defaulted because he did not challenge his al-
leged principal liability and personal possession of the firearms on
direct appeal. In response, Seabrooks argues that the government
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18 Opinion of the Court 20-13459
waived this affirmative defense because it failed to raise it before
the district court.
We agree that the government waived the affirmative de-
fense of procedural default. See Foster v. United States,
996 F.3d
1100, 1106–07 (11th Cir. 2021) (collecting cases). The government’s
response to Seabrooks’s § 2255 motion included only passing refer-
ences to procedural default, and the district court did not raise the
defense sua sponte. Because the government failed to raise this af-
firmative defense in the lower court, it cannot benefit from the de-
fense now. 7 See Howard v. United States,
374 F.3d 1068, 1073 (11th
Cir. 2004). Accordingly, Seabrooks’s Rehaif claim is neither proce-
durally barred nor procedurally defaulted.
C. The district court’s error was not harmless.
Turning to the merits of Seabrooks’s Rehaif claim, the par-
ties agree that the harmless error standard of review applies. The
government also seems to agree that the district court’s aiding and
abetting instruction was improper under Rehaif because the gov-
ernment failed to present evidence demonstrating that Seabrooks
knew Butler was a convicted felon at the time of the offense during
Seabrooks’s trial. Nevertheless, the government argues that the
7 Even if the government had not waived procedural default, the fact that Sea-
brooks has not challenged his principal liability is largely irrelevant given the
jury’s general verdict. See infra Section III.C.
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20-13459 Opinion of the Court 19
district court’s error was harmless because “the record amply sup-
ports” Seabrooks’s conviction on the basis of principal liability.
We recently considered whether instructing a jury “on a
constitutionally invalid predicate as one of several potential alter-
native predicates” was harmless. See Granda v. United States,
990
F.3d 1272, 1292 (11th Cir. 2021). In Granda, we explained that relief
under the harmless error standard is only proper if we have “grave
doubt about whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury’s verdict.”
Id. (quoting Davis v. Ayala,
576 U.S. 257, 267–68 (2015)) (internal
quotation marks omitted). Specifically, there “must be more than
a reasonable possibility” that the error was harmful.
Id. (quoting
Davis, 576 U.S. at 267–68). In other words, we may only order relief
if the error “resulted in actual prejudice.” Id. (quoting Brecht v.
Abrahamson,
507 U.S. 619, 637 (1993)) (internal quotation marks
omitted).
As the reviewing court, we must “ask directly” whether the
district court’s error substantially influenced the jury’s verdict in
Seabrooks’s case. Id. at 1293 (quoting O’Neal v. McAninch,
513
U.S. 432, 436 (1995)). Upon review of the record, we have grave
doubt about whether the Rehaif error led to Seabrooks’s felon-in-
possession conviction. Id. at 1294 (explaining that it is proper to re-
view the record to determine “whether the jury instead (or also)
found the defendant guilty under a valid theory”).
From the outset, the government’s principal liability evi-
dence was weak. For that reason, the government offered aiding
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20 Opinion of the Court 20-13459
and abetting as an alternative theory of liability—despite the fact
that Seabrooks was not charged with aiding and abetting in the in-
dictment. After the district court gave the aiding and abetting in-
struction over Seabrooks’s objection, the government directed the
jury’s attention to “the value” of the instruction, emphasizing that
the instruction was available to the jury if it had “a question” about
Seabrooks’s actual possession.
The record suggests that the jury followed the government’s
guidance precisely. After two and a half hours of deliberations, the
jury asked a question related to Seabrooks’s principal liability; spe-
cifically, whether certain actions—receipt of item, touch of item,
physical inspection of item—constitute possession. In response, the
district court informed the jury that mere inspection, standing
alone, is not sufficient to establish possession. Thirty-five minutes
later, the jury reached a guilty verdict on both counts.
Although the verdict did not specify whether the jury con-
sidered only principal liability, we conclude that there is more than
a reasonable possibility that the jury’s conviction relied on the in-
valid aiding and abetting instruction. It is likely that the jury lis-
tened to the government’s guidance, asked a question about Sea-
brooks’s principal liability, received an answer suggesting Sea-
brooks could not be convicted under that theory, opted for the aid-
ing and abetting instruction, and convicted Seabrooks based on
that theory of liability. As a result, we have grave doubts about
whether the district court’s error substantially influenced the jury’s
USCA11 Case: 20-13459 Date Filed: 05/06/2022 Page: 21 of 21
20-13459 Opinion of the Court 21
verdict, and thus we find the error actually prejudiced Seabrooks,
and cannot be deemed harmless.
IV
In conclusion, we hold that Rehaif applies retroactively to
Seabrooks’s initial § 2255 motion, that Seabrooks’s Rehaif claim is
neither procedurally barred nor procedurally defaulted, and that
the district court’s error was not harmless. Accordingly, we reverse
the district court’s denial of Seabrooks’s § 2255 motion, vacate Sea-
brooks’s felon-in-possession conviction, and remand for further
proceedings consistent with this opinion.
REVERSED, VACATED, and REMANDED.
