United States v. Ryan Michell ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10059
Plaintiff-Appellee,
D.C. No. 2:17-cr-
v. 01690-GMS-1
RYAN PATRICK MICHELL, ORDER AND
Defendant-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Argued and Submitted July 25, 2022
San Francisco, California
Filed February 15, 2023
Amended April 14, 2023
Before: Susan P. Graber and Kim McLane Wardlaw,
Circuit Judges, and M. Miller Baker, * International Trade
Judge.
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Baker
*
The Honorable M. Miller Baker, International Trade Judge for the
United States Court of International Trade, sitting by designation.
2 UNITED STATES V. MICHELL
SUMMARY **
Criminal Law
The panel amended a February 15, 2023, opinion
affirming the defendant’s 2018 convictions for unlawful
possession of a firearm under 18 U.S.C. §§ 922(g)(1) and
924(a)(2); denied a petition for panel rehearing; and denied
on behalf of the court a petition for rehearing en banc.
The defendant was convicted in 1997 of felony assault
with a deadly weapon committed while he was a juvenile. In
2016 and 2017, he pleaded guilty to two aggravated DUIs,
which were felonies committed in 2003 while he was an
adult. Relying on the Supreme Court's post-conviction
decision in Rehaif v. United States, 139 S. Ct. 2191 (2019),
the defendant argued on appeal that his 2018 convictions
should be overturned due to the district court's failure to
instruct the jury that the government must prove that he
belonged to the relevant category of persons barred from
possessing a firearm.
It was undisputed that the district court’s failure to
instruct on the Rehaif knowledge element was error and that
the error was plain. The panel held, however, that the
defendant cannot show that this error affected his substantial
rights. In so holding, the panel did not need to reach whether
being convicted as a juvenile or having been incarcerated for
more than a year as a result of a juvenile conviction satisfies
the Rehaif mens rea requirement. The panel held that the
defendant’s two DUI convictions unambiguously
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MICHELL 3
demonstrate that there is no reasonable probability that a jury
would find that the defendant did not know he had been
convicted of a crime punishable by a year or more in prison
at the time he possessed the firearm. The panel explained
that the defendant’s 2016 plea agreement and conviction
documents for one of the DUIs prove beyond a reasonable
doubt that he knew in 2017 that he had been convicted of a
crime punishable by more than one year. The defendant
contended that because the plea agreements were not
presented to the jury at trial, this court cannot take judicial
notice of judicial records reflecting the defendant’s plea
agreement in the 2016 felony case. The panel explained that
this contention contravenes the Supreme Court’s decision in
Greer v. United States, 141 S. Ct. 2090 (2021) (holding that
appellate panels reviewing Rehaif instructional errors may
consider information about a defendant’s prior convictions
in a pre-sentence report), and Ninth Circuit
authority. Distinguishing United States v. Dior, 671 F.2d
351 (9th Cir. 1982), the panel wrote that this court’s
precedent is clear that it can and should take judicial notice
of facts outside the record on plain-error review to answer
the question whether there is a reasonable probability that,
in a new trial, a jury would acquit a defendant. The panel
wrote that additional record evidence—including the
defendant’s repeated statements that he knew his DUI
convictions made him a “prohibited possessor” of firearms
under federal law—further demonstrates that the defendant
clearly understood that he belonged to the category of
persons barred from possessing a firearm.
The panel amended the opinion to add a footnote
concerning Michell’s contention that the indictment was
fatally deficient since it failed to plead the Rehaif mens rea
requirement. As the same plain error review standard
4 UNITED STATES V. MICHELL
applies to indictments as jury instructions under Rehaif, the
panel held that the error did not affect Michell’s substantial
rights and does not warrant the reversal of his conviction.
Court of International Trade Judge Baker concurred in
part and dissented in part. He agreed with the majority that
this court should grant the government's motion to take
judicial notice of evidence outside the record. But in his
view—even after taking that additional evidence into
account—it’s a coinflip as to whether a properly instructed
jury would convict the defendant in a new trial. Because
Judge Baker thinks the defendant has easily carried his
burden of showing a reasonable probability of acquittal in
such a trial, he dissented from the majority's affirmance of
the conviction.
COUNSEL
Michele R. Moretti (argued), Law Office of Michele R.
Moretti, Lake Butler, Florida, for Defendant-Appellant.
Peter S. Kozinets (argued), Assistant United States Attorney;
Rachel C. Hernandez; Kristen Jennifer Brook; Krissa M.
Lanham, Appellate Division Chief; Gary M. Restaino,
United States Attorney; Office of the United States Attorney,
Phoenix, Arizona; for Plaintiff-Appellee.
UNITED STATES V. MICHELL 5
ORDER
The opinion filed February 15, 2023 and appearing at 60
F.4th 518, is amended by the amended Opinion filed
concurrently with this order.
With this amendment, the panel unanimously votes to
deny the petition for rehearing en banc, and a majority of the
panel votes to deny the petition for panel rehearing. Judge
Wardlaw votes to deny the petition for panel rehearing and
rehearing en banc, and Judge Graber votes to deny the
petition for panel rehearing and recommends denying the
petition for rehearing en banc. Judge Baker recommends
that the panel deny the petition for rehearing en banc but
votes to grant the petition for panel rehearing.
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
March 17, 2023, is DENIED. No further petitions for panel
rehearing or rehearing en banc will be entertained.
IT IS SO ORDERED.
6 UNITED STATES V. MICHELL
OPINION
WARDLAW, Circuit Judge:
Ryan Michell appeals his 2018 convictions for unlawful
possession of a firearm under 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Relying on the Supreme Court’s subsequent
decision in Rehaif v. United States, 139 S. Ct. 2191 (2019),
Michell argues that his convictions should be overturned due
to the district court’s failure to instruct the jury that the
government “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,” which he argues was plain error. Id. at 2200(emphasis added). We have jurisdiction under 28 U.S.C. §
1291, and we affirm the convictions.
I.
In 2017, FBI agents began investigating Michell’s
possible involvement in manufacturing a chemical weapon.
During that investigation, the agents discovered that Michell
had been convicted of several felonies—assault with a
deadly weapon in 1997 and two aggravated DUIs in 2017—
and found photographs on his Facebook profile showing him
firing various firearms. On December 1, 2017, the agents
executed a search warrant at Michell’s home and seized four
live rounds of Lapua .338 ammunition, 50-60 spent cartridge
cases of various calibers, and a used shooting-practice target.
A search of Michell’s phone uncovered postings that he
had made on Backpage.com listing firearms for sale, as well
as text messages between Michell and a potential buyer,
Nicholas Riddle. In the messages, Riddle expressed interest
in purchasing one of Michell’s rifles. Michell, in turn,
UNITED STATES V. MICHELL 7
provided more background about the weapon, including that
he had purchased it “used years ago,” that he had taken it out
only “a few times, maybe 100 rounds” because he preferred
to use his “other toys,” so this one was “gathering dust in
[his] gun safe.” Michell also stated that he had a number of
other firearms for sale. Riddle agreed to purchase a rifle,
two high-capacity 30-round magazines, and 100 rounds of
ammunition for $400, and Michell sent him the address
where they could meet for the sale. Riddle later identified
the man who met him at that address as Michell.
Shortly thereafter, agents arrested Michell, who agreed
to submit to a video-recorded interview. During the
interview, Michell stated that he did not have guns because
of his felony status:
Michell: I gave [my ex-fiancée] money . . . to
buy guns . . . but she’s legal to have them . . .
Agent: But you don’t have guns because of –
Michell: I don’t have guns. I’m a felon. I
mean, I’d love to eventually expunge my – I
mean, I – I love – I love to shoot and pick up
another hobby like that, but I don’t have any
guns, no, sir.
On February 27, 2018, a grand jury returned an
indictment charging Michell with two counts of violating 18
U.S.C. §§ 922(g)(1) and 924(a)(2), possession of a weapon
and ammunition by a prohibited person. The jury found
Michell guilty on both counts, and the court sentenced him
to 30 months in prison and three years of supervised release.
A few months after Michell was sentenced, the Supreme
Court clarified the mens rea requirement for felon-in-
8 UNITED STATES V. MICHELL
possession offenses in Rehaif. The Court held that, to obtain
a conviction, the government must prove not only that the
defendant knew that he possessed a firearm, but also that he
knew that “he belonged to the relevant category of persons
barred from possessing a firearm.” 139 S. Ct. at 2200.
Because Michell’s trial occurred before Rehaif issued,
Michell did not request, and the district court did not give, a
jury instruction requiring the jury to find that Michell knew
he belonged to a “relevant category,” that is, that he knew he
had been convicted of a crime punishable by more than a
year in prison when he possessed the firearm. See United
States v. Singh, 979 F.3d 697, 727 (9th Cir. 2020). After
Rehaif issued, Michell timely appealed and argued that the
failure to instruct the jury on the second knowledge element
was plain error, requiring the reversal of his convictions.
II.
We review the failure to give a Rehaif instruction under
these circumstances for plain error. Greer v. United States,
141 S. Ct. 2090, 2096–97 (2021). “To establish eligibility
for plain-error relief, a defendant must satisfy three threshold
requirements.” Id. at 2096. There must be a (1) “error” (2)
that was “plain” and (3) that “affect[s] ‘substantial rights,’
which generally means that there must be ‘a reasonable
probability that, but for the error, the outcome of the
proceeding would have been different.’” Id. (citation
omitted).
It is undisputed that Michell has satisfied the first two
prongs of the plain error standard: there was an error and it
was plain. See United States v. Benamor, 937 F.3d 1182,
1188 (9th Cir. 2019) (holding that the failure to instruct that
the jury must find the defendant knew he was a felon when
he possessed the firearm in a § 922(g) prosecution is plain
UNITED STATES V. MICHELL 9
error). However, Michell cannot show that this error
affected his substantial rights. Due to at least two of his prior
convictions, all punishable by more than one year in prison,
there is no “reasonable probability” that a jury would find
that Michell did not know he had been convicted of a crime
punishable by a year or more in prison at the time he
possessed the firearm. Greer, 141 S. Ct. at 2096–97.
A.
Section 922(g)(1) renders a prohibited possessor any
person who has been convicted of a crime “punishable by
imprisonment for a term exceeding one year.” Michell
served two years in prison for his first conviction, an
aggravated assault in 1997, which was committed when he
was a juvenile.
Michell contends that, because Michell’s 1997
conviction was for an offense committed while he was a
juvenile, reasonable doubt exists regarding whether Michell
understood his aggravated assault conviction classified him
as a felon. As Justice Sotomayor stated in Greer, “a
defendant may not understand that a conviction in juvenile
court . . . can be a felony for purposes of federal law.” 141
S. Ct. at 2103 (Sotomayor, J., concurring). However, while
it is possible that Michell did not understand that his juvenile
conviction was a felony, we need not and do not reach the
question of whether being convicted as a juvenile or having
been incarcerated for more than a year as a result of a
juvenile conviction satisfies the Rehaif mens rea requirement
here. Michell’s two DUI convictions, which occurred when
he was an adult, unambiguously demonstrate that there is no
“reasonable probability” that a jury would find that Michell
did not know he had been convicted of a crime punishable
10 UNITED STATES V. MICHELL
by a year or more in prison at the time he possessed the
firearm. Greer, 141 S. Ct. at 2096–97.
B.
In 2016 and 2017, Michell pleaded guilty to two DUIs,
committed in 2003, that occurred in Maricopa County and
Pinal County (each punishable by up to three years and nine
months in prison). Michell’s 2016 plea agreement and
conviction documents for the aggravated DUI in Maricopa
County prove beyond a reasonable doubt that he knew in
2017 that he had been convicted of a crime punishable by
more than a year in prison. Specifically, on the first page of
the plea agreement, the first term initialed by Michell
indicates he understood that:
The crime carries a presumptive sentence of
2.5 years; a minimum sentence of 1.5 years;
a mitigated sentence of 1 year; a maximum
sentence of 3 years; and an aggravated
sentence of 3.75 years.
Because the plea agreements were not presented to the
jury at trial, Michell argues that we cannot take judicial
notice of judicial records reflecting Michell’s plea
agreement in the 2016 Maricopa County felony case, State
of Arizona v. Michell, CR2004-038904 (Dkt. 95), under Fed.
R. Evid. 201(d). However, this contention contravenes
clearly established Supreme Court and Ninth Circuit
authority. 1 When an appellate court conducts plain-error
review of a Rehaif error, any “argument that plain-error
1
Michell does not challenge the authenticity of the documents. We
therefore grant the government’s motion to take judicial notice of the
records of conviction for the two Arizona DUI offenses (Dkt. 95).
UNITED STATES V. MICHELL 11
review must focus exclusively on the trial record
contravenes both logic and precedent.” Greer, 141 S. Ct at
2098 (holding that appellate panels reviewing Rehaif
instructional errors may consider information about a
defendant’s prior convictions in a pre-sentence report).
Following the Supreme Court’s lead, the Ninth Circuit has
frequently looked outside the trial record when deciding
Rehaif claims. See Benamor, 937 F.3d at 1189 (looking to
non-jury evidence of prior convictions in considering a
Rehaif claim of error); United States v. Hearns, 836 Fed.
App’x 520, 522 (9th Cir. 2020) (unpublished) (“Because the
records are the proper subject of judicial notice and declining
to take judicial notice would ‘merely be delaying the
inevitable,’ the Court grants the Government’s uncontested
motion.” (citation omitted)); United States v. Valencia-
Barragan, 819 Fed. App’x 508, 511 n.3 (2020)
(unpublished) (“We grant the Government’s motion to take
judicial notice of certain conviction-related documents for
purposes of Valencia’s Rehaif-based claim.”). 2
2
Indeed, most circuits have held that it is permissible to take judicial
notice of facts outside the record for Rehaif claims on plain error review.
See United States v. Ward, 957 F.3d 691, 695 & n.1 (6th Cir. 2020)
(holding that appellate courts have authority to consult non-jury evidence
on plain error review, including plea agreements); United States v. Reed,
941 F.3d 1018, 1021 (11th Cir. 2019) (considering facts not presented at
trial, including admissions that occurred at sentencing); United States v.
Huntsberry, 956 F.3d 270, 284–86 (5th Cir. 2020) (taking judicial notice
of conviction records to reject Rehaif claims); United States v. Payne,
964 F.3d 652, 656 (7th Cir. 2020) (taking judicial notice of state court
conviction documents in Rehaif appeal); United States v. Miller, 954
F.3d 551, 559–560 (2d Cir. 2020) (holding that appellate panels could
consider information from a pre-sentence investigation report in
evaluating a Rehaif claim).
12 UNITED STATES V. MICHELL
Despite this controlling precedent, Michell chooses to
rely upon dicta in a footnote in our 1982 decision in United
States v. Dior, 671 F.2d 351 (9th Cir. 1982), upholding a
judgment of acquittal because the government failed to
prove an essential element of the crime. Rejecting the
dissent’s suggestion that the majority simply could have
taken judicial notice of that element, we said for a court to
“take judicial notice of an adjudicative fact after a jury’s
discharge in a criminal case would cast the court in the role
of a fact-finder and violate defendant’s Sixth Amendment
right to trial by jury.” Id. at 358 n.11. Michell contends that
his 2016 plea agreement constitutes an “adjudicative fact,”
sweepingly defined as any fact “concerning the immediate
parties.” Banks v. Schweiker, 654 F.2d 637, 640 n.3 (9th Cir.
1981) (citation omitted). But we do not review de novo here,
and Dior did not address at all the standards for plain-error
review. In Dior, we held that—on mandamus review of a
judgment of acquittal following a criminal conviction—we
may not take judicial notice of facts to close evidentiary gaps
in the government’s case-in-chief, where the government
failed to introduce the evidence before the jury was
discharged. Dior, 671 F.2d at 357–58. The procedural
posture of this case is wholly distinct: Under plain-error
review of an instructional error, we ask simply whether there
is a reasonable probability that, in a new trial, a jury would
acquit a defendant. Greer, 141 S. Ct. at 2097. And our
precedent is clear that we can and should take judicial notice
of facts outside the record on plain-error review to answer
that question, which is not tantamount to filling gaps in the
government’s case in an earlier trial. To do otherwise would
burden courts with the expense and waste of judicial
resources on retrial, even though the outcome is inevitable.
UNITED STATES V. MICHELL 13
The dissent contends that we should not rely on the plea
agreement because it is “hardly establish[ed] that [Michell]
read the document at the time.” Dissent at 25. However, the
portion of the guilty plea that establishes that Michell’s
offense “carried a presumptive sentence of 2.5 years” is the
first initialed paragraph of the plea agreement Michell
signed just one year before law enforcement officers found
firearms in Michell’s house. The number of years of
presumptive incarceration are in bold and stand out starkly
in the plea agreement. Though Michell actually served less
than a year in prison for each of the DUI offenses, this case
is hardly analogous to United States v. Werle, 335 F.4th 1195(9th Cir. 2022), which addressed whether a district court
erred in summarily denying Werle’s motion to vacate his
guilty plea for firearm possession offenses without an
evidentiary hearing in light of Rehaif. There, Werle had a
prior conviction for which he served a sentence of a year and
a day. He argued that he had extensive brain damage that
affected his memory as to the length of his incarceration and
his understanding that he was a felon. Id. at 1203. In that
case, the operative question was whether the district court
should have held an evidentiary hearing to allow Werle to
introduce evidence that there existed a “reasonable
probability that he would have proceeded to trial had he been
properly informed of the elements of the offense.” Id. at
1202. Here, on plain error review, we have the benefit of
evaluating the full evidentiary record—including the trial
record, Michell’s presentencing report, and Michell’s prior
guilty pleas—to determine whether there is any reasonable
probability that a jury would not find that Michell
understood his conviction was punishable by more than a
year in prison.
14 UNITED STATES V. MICHELL
Moreover, additional record evidence demonstrates that
Michell clearly understood, even before trial, that “he
belonged to the relevant category of persons barred from
possessing a firearm.” Rehaif, 139 S. Ct. at 2200. In
addition to signing a plea agreement that acknowledged his
2016 conviction was punishable by over a year in prison,
during the course of the investigation and trial in this case,
Michell repeatedly stated that he knew his DUI convictions
made him a “prohibited possessor” of firearms under federal
law. For example, during a post-arrest interview, Michell
stated that, although he had given his ex-fiancée money to
buy guns because it was “legal” for her to have them, he did
not have guns himself because he was a “felon.” And at trial,
he testified that he knew that both DUI convictions were
felonies and that he was thus a prohibited possessor under
§ 922(g), stating in relevant part:
Defense Counsel: So you know that there
were aggravated DUI charges, you know to
be a felony?
Michell: Yes, sir.
Defense Counsel: Are you a prohibited
possessor?
Michell: Yes, sir. After my DUI matter,
that’s why there was no guns, no – I mean,
I’m not going to lose my opportunity to be…
with my daughters.
In December 2017, when agents executed a search
warrant at his home and found evidence of gun possession,
Michell therefore fully understood that his DUI convictions
were punishable by more than a year of incarceration. There
UNITED STATES V. MICHELL 15
is no reasonable probability that a jury would find
otherwise. 3 18 U.S.C. § 922(g)(1).
III.
For all the reasons stated above we AFFIRM the district
court.
BAKER, Judge, concurring in part and dissenting in part:
The federal government prosecuted Ryan Patrick
Michell—then a 38-year-old man with a minimal criminal
record stemming from offenses at age 17 and in his early
20s—for having four bullets in his garage and for his
involvement in the private sale of a rifle. Under Rehaif v.
United States, 139 S. Ct. 2191 (2019), the grand jury did not
properly indict Michell for this alleged violation of the felon-
in-possession statute. Nor did the district court permit
Michell to fully defend himself at trial, where the
government failed to prove its case and where the court
incorrectly instructed the jury on the elements of the charged
offense.
Having served a 30-month federal prison sentence
following his conviction, Michell pursues this appeal
seeking only an opportunity for a new trial to clear his name.
Although I agree with the majority that we should grant the
3
Michell additionally contends that the indictment was facially deficient
since it failed to plead the Rehaif mens rea requirement. As the same
plain error review standard applies to indictments as jury instructions
under Rehaif, see Singh, 979 F.3d at 370, we also hold that the error in
the indictment did not affect Michell’s substantial rights and does not
warrant the reversal of his conviction.
16 UNITED STATES V. MICHELL
government’s motion to take judicial notice of evidence
outside the record, in my view—even after taking that
additional evidence into account—it’s a coinflip as to
whether a properly instructed jury would convict Michell in
a new trial. Because I think he has easily carried his burden
of showing a “reasonable probability” of acquittal in such a
trial, I respectfully dissent from the majority’s affirmance of
his conviction.
I
In 1997, Michell—then 17—was convicted in Arizona
of aggravated assault. He was imprisoned for 20 months,
first in a juvenile detention center and then in an adult section
after he turned 18.
In 2003, when he was 23–24, Michell was charged in
Arizona with two separate DUIs. For reasons that are
unclear, Arizona authorities waited 13 years to prosecute
these charges, to which Michell agreed to plead guilty in
October 2016. In early 2017 he was sentenced—as a first-
time offender—to concurrent four-month prison sentences
with three years’ probation.
In late 2017, in response to information that Michell
might be involved in creating a chemical weapon and after
obtaining a warrant, federal agents raided his home.
Although the search for nefarious activities related to a
purported chemical weapon turned up empty, investigators
found the four bullets and evidence of his involvement in the
private sale of a $450 rifle at his brother’s home. Michell
waived the right to an attorney and fully cooperated with the
investigation.
The United States Attorney for Arizona then asked a
grand jury to return a superseding indictment charging
UNITED STATES V. MICHELL 17
Michell with two counts of violating 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). The former makes it “unlawful for any person
. . . who has been convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year
. . . to . . . possess . . . any firearm or ammunition . . . .” 18
U.S.C. § 922(g)(1). The latter then specified that “[w]hoever
knowingly violates . . . subsection (g) . . . of section 922 shall
be fined . . . , imprisoned not more than 10 years, or both.”
18 U.S.C. § 924(a)(2). 1
The grand jury obliged. Its indictment simply charged
Michell with possession of the guns and ammunition while
“having been previously convicted of a crime punishable by
a term of imprisonment exceeding one year.”
Before trial, the government successfully moved in
limine for an order barring Michell from presenting any
argument and evidence that might suggest he did “not
qualify as a prohibited felon for purposes of 18 U.S.C.
§ 922(g)(1) and § 924(a)(2) because either his convictions
did not render him a prohibited person or because he did not
know he was prohibited.” The parties also stipulated that
Michell was convicted in 1997 and 2017 of crimes
“punishable by a term of imprisonment exceeding one
year.” 2
1
While this appeal was pending, Congress moved the reference to
§ 922(g) from § 924(a)(2) to a new § 924(a)(8) and increased the
potential penalty for § 922(g) violations to imprisonment “for not more
than 15 years.” See 18 U.S.C. § 924(a)(8) (effective June 25, 2022); see
also Pub. L. No. 117–159, § 12,004(c), 136 Stat. 1313, 1329 (June 25,
2022).
2
This stipulation reflected the state of circuit law as it stood as that time,
under which the government did not have the burden of proving any
18 UNITED STATES V. MICHELL
At trial, Michell testified he “didn’t perceive that the
juvenile offense would follow me the rest of my life.” The
government objected as to relevance, and the district court
instructed Michell’s counsel to “move on.” A few moments
later, when Michell’s counsel sought to examine him on his
knowledge of his legal status, the government objected on
relevance grounds, which the district court sustained. The
district court then instructed the jury, in the middle of trial,
that “what the defendant’s conclusions about the law were
as it relates to his knowledge of being a prohibited possessor
is not relevant.” At the close of trial, the district court
instructed the jury that one of the elements of the charged
offense was that “[a]t the time the defendant possessed the
[ammunition and firearm], the defendant had been convicted
of a crime punishable by imprisonment for a term exceeding
one year.”
After more than three hours of deliberations, the jury
returned a guilty verdict. Although the government sought a
sentence of almost six years, the district court sentenced
Michell to less than half that—30 months.
The following year, the Supreme Court upended
longstanding law in this area. It held that “in a prosecution
under 18 U.S.C. §§ 922(g) and § 924(a)(2), the Government
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.”
knowledge on the part of Michell. See United States v. Johnson, 459 F.3d
990, 998 (9th Cir. 2006) (characterizing various federal firearms laws,
including § 922(g)(1), as “something approaching absolute liability”).
The only defense available to Michell was whether in fact he possessed
the rifle and ammunition.
UNITED STATES V. MICHELL 19
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019)
(emphasis added).
On appeal, Michell challenges both the indictment and
the jury instruction’s failure to include the mens rea element
required by Rehaif. Because he did not raise that issue at
trial, he forfeited the claim of error under Federal Rule of
Criminal Procedure 51(a). Greer v. United States, 141 S. Ct.
2090, 2096 (2021).
Even so, we may consider “plain error that affects
substantial rights.” Fed. R. Crim. P. 52(b). There are three
threshold requirements for relief under such review: (1) an
error must exist (2) that is clear or obvious and (3) that
affects “substantial rights.” Greer, 141 S. Ct. at 2096. This
“generally means that there must be ‘a reasonable
probability that, but for the error, the outcome of the
proceeding would have been different.’ ” Id. (quoting
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05
(2018)). “If those three requirements are met, an appellate
court may grant relief if it concludes that the error had a
serious effect on ‘the fairness, integrity or public reputation
of judicial proceedings.’ ” Id. at 2096–97 (quoting Rosales-
Mireles, 138 S. Ct. at 1905).
It is undisputed here that Michell satisfies the first two
requirements of plain-error review. Under Rehaif, the grand
jury’s indictment was defective, because it failed to allege
that when Michell possessed the ammunition and rifle he
knew that he had been “convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year.”
18 U.S.C. § 922(g)(1). Similarly, the district court failed to
include that element of the charged offense in the jury
instruction.
20 UNITED STATES V. MICHELL
As to the third requirement of plain-error review—
whether there is a “reasonable probability” that a jury could
find that Michell did not know at the time of the charged
conduct that he had been “convicted . . . of[] a crime
punishable by imprisonment for a term exceeding one year,”
id.—that “standard is not the same as, and should not be
confused with, a requirement that a defendant prove by a
preponderance of the evidence that but for error things
would have been different.” United States v. Irons, 31 F.4th
702, 714 (9th Cir. 2022) (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)) (emphasis
in Irons); see also id. (on plain-error review, a defendant
“does not have to show that it is more likely than not that a
[correctly-instructed] jury would have acquitted him”).
Instead, “[a] probability is ‘reasonable’. . . if it is sufficient
to undermine confidence in the outcome of the proceeding.”
Id. at 713–14 (cleaned up) (citing Dominguez Benitez, 542
U.S. at 83).
Finally, in this context of a § 922(g)(1) charge, we also
ask whether “a defendant who is a felon [makes] an adequate
showing on appeal that he [c]ould . . . present[] evidence in
the district court that he did not” possess the necessary mens
rea at the time of the charged conduct. Greer, 141 S. Ct. at
2097.
II
Given the evident problems with relying on Michell’s
juvenile conviction as a felon-in-possession predicate, see,
e.g., United States v. Wilson, 853 F. App’x 297, 305–07
(10th Cir.) (mem.), cert. denied, 142 S. Ct. 366 (2021) (court
of appeals was “unable to conclude that the jury would have
reached the same conclusion if properly instructed” under
Rehaif when a § 922(g) defendant’s convictions were all
UNITED STATES V. MICHELL 21
juvenile except for an adult conviction at age 18, for which
he served four years in the youthful offender system rather
than adult prison) (cleaned up), the majority rests its
affirmance solely on Michell’s two DUI convictions in early
2017—stemming from conduct more than 13 years earlier—
for which he served only four months in prison.3 As to these
convictions, Michell asserts that he did not know, at the time
of the charged conduct in November/December 2017, that
they were punishable by more than one year of
imprisonment.
My colleagues find no “reasonable probability” that a
jury could find that Michell did not realize that his DUI
convictions were so punishable. Majority at 9. They cite his
2016 Maricopa County plea agreement, id. at 10, his
statements to investigators, id. at 14, and his trial testimony,
id. I address each of these in turn.
A
1
On October 21, 2016, Michell signed an agreement to
plead guilty in the Maricopa County Superior Court to
driving under the influence in 2003. This agreement is not
included in the record of any part of this case; the
government proffers it on appeal through a motion
requesting that we take judicial notice under Federal Rule of
Evidence 201(d). Michell objects, arguing that on plain error
review we are limited to the entire record, even if we are not
limited to the trial record. See Irons, 31 F.4th at 714 (on
plain-error review, “we ‘may consider the entire record—
3
Because the majority declines to consider whether Michell’s juvenile
conviction qualifies as a felon-in-possession predicate, I likewise decline
to do so.
22 UNITED STATES V. MICHELL
not just the record from the particular proceeding where the
error occurred’ ”) (quoting Greer, 141 S. Ct. at 2098)
(emphasis in Greer).
I agree with the majority that we are not so limited. The
Court in Greer reasoned that on plain error review an
appellate court can look beyond the trial record to “the entire
record” because such review assumes a counterfactual
scenario where the district court gave the proper mens rea
instruction and the parties “introduce[d] additional
evidence” relevant to that instruction. Greer, 141 S. Ct. at
2098. The Court also suggested that the parties could seek to
supplement the record on appeal with evidence bearing on
the defendant’s state of mind. See id. at 2097 (citing Fed. R.
App. P. 10(c)). It necessarily follows that we can consider
additional “relevant and reliable” evidence from outside the
entire record of the proceeding itself, at least to the extent
such evidence could have been presented to the jury in the
counterfactual hypothetical that plain error review envisions.
Michell further argues that even if we are not otherwise
restricted on plain error review to the entire record, our
decision in United States v. Dior, 671 F.2d 351 (9th Cir.
1982), precludes us from taking judicial notice of his 2016
Maricopa County plea agreement. In Dior, a case involving
de novo review, we explained that for “an appellate court to
take judicial notice of an adjudicative fact in a criminal case
would frustrate the policies Congress sought to achieve in
providing in F.R.Evid. 201([f]) that a jury is not required to
accept as conclusive a judicially noticed fact.” Id. at 358
n.11.
UNITED STATES V. MICHELL 23
I agree with the majority that Dior and Rule 201(f) 4 do
not bar us from taking judicial notice of an adjudicative fact
such as Michell’s 2016 Maricopa County plea agreement. 5
That rule’s purpose is to “preserve the jury’s traditional
prerogative, in a criminal case, to ignore even
uncontroverted facts in reaching a verdict and to prevent the
trial court from violating the spirit of the Sixth Amendment
right to counsel by directing a partial verdict as to facts.”
Dior, 671 F.2d at 358 n.11 (citing United States v. Jones, 580
F.2d 219, 223–24 (6th Cir. 1978); H.R. No. 93-650, 93d
Cong., 1st Sess. 6–7, reprinted in 1974 U.S.C.C.A.N. 7051,
7075, 7080).
On plain error review, however, we ask whether the error
affects “substantial rights,” Greer, 141 S. Ct. at 2096, which
requires “the showing of ‘a reasonable probability that, but
for the error claimed, the result of the proceeding would have
been different.” Dominguez Benitez, 542 U.S. at 81–82
(cleaned up and quoting United States v. Bagley, 473 U.S.
667, 682 (1985) (opinion of Blackmun, J.)). This
formulation reflects the standard adopted in Strickland v.
Washington, 466 U.S. 668 (1984), where the Court
explained that in determining “whether the specified errors
resulted in the required prejudice,” id. at 694,
4
Federal Rule of Evidence 201(f) provides that “[i]n a criminal case, the
court must instruct the jury that it may or may not accept the [judicially]
noticed fact as conclusive.” Fed. R. Evid. 201(f) (emphasis added).
5
An “adjudicative fact . . . is a fact ‘concerning the immediate parties.’ ”
Banks v. Schweiker, 654 F.2d 637, 640 n.3 (9th Cir. 1981) (quoting Fed.
R. Evid. 201 advisory cmte. notes). Michell’s initials and signature on
the 2016 Maricopa County plea agreement concern him and thus are
adjudicative facts.
24 UNITED STATES V. MICHELL
a court should presume, absent challenge to
the judgment on grounds of evidentiary
insufficiency, that the judge or jury acted
according to law. An assessment of the
likelihood of a result more favorable to the
defendant must exclude the possibility of
arbitrariness, whimsy, caprice, “nullification,”
and the like. A defendant has no entitlement
to the luck of a lawless decisionmaker, even
if the lawless decision cannot be reviewed.
Id. at 694–95.
It follows from this reasoning that we must presume—
because Michell does not challenge the evidentiary
sufficiency of the decision below—that if the district court
had taken judicial notice of his 2016 Maricopa County plea
agreement and given a Rule 201(f) instruction, the jury
would not have exercised its prerogative to simply ignore the
existence of that agreement, whose authenticity is
unchallenged. Rule 201(f) therefore is no impediment to our
taking judicial notice of Michell’s plea agreement, and I
concur in granting the government’s motion that we take
such notice.
2
The majority holds that Michell’s 2016 Maricopa
County plea agreement “prove[s] beyond a reasonable doubt
that [Michell] knew in 2017 that he had been convicted of a
crime punishable by more than a year in prison.” Majority at
10. Although I acknowledge that a jury might reach that
conclusion after a new trial, it’s by no means a foregone
conclusion.
UNITED STATES V. MICHELL 25
In my view, Michell’s 2016 Maricopa County plea
agreement is underwhelming evidence of his state of mind
at the time of the charged conduct over a year later. 6 That
Michell signed the document and initialed its 11 paragraphs
of fine print hardly establishes that he read the document at
the time.
And even if we infer that Michell read the plea
agreement, I don’t see how we can be certain that he
understood it. As Michell argues in response to the
government’s motion to take judicial notice, the plea
agreement “raises more questions than it answers.” The
passage cited by the majority provides:
Count 1: The crime carries a presumptive
sentence of 2.5 years; a minimum sentence of
1.5 years; a mitigated sentence of 1 year; a
maximum sentence of 3 years; and an
aggravated sentence of 3.75 years. Probation
IS available.
On the face of the document, it’s not clear which of these
sentence ranges Michell was eligible for. For all he knew as
a layman, his maximum exposure was limited to “a mitigated
sentence of one year,” which might not be a qualifying felon-
in-possession predicate.
Michell also points out the passage cited by the majority
is neither boldfaced nor underscored in its entirety, in
6
Michell signed the Maricopa County plea agreement in October 2016.
The superseding indictment charged Michell with possessing a rifle and
ammunition in November/December 2017.
26 UNITED STATES V. MICHELL
contrast to the key provisions of the agreement outlining the
actual terms affecting him, such as the provision stating that
Defendant shall serve 4 months in the
Arizona Department of Corrections then
be placed on Supervised Probation.
Defendant shall pay a fine of $750 plus an
80% surcharge….Defendant’s driver’s
license shall be revoked.
(Boldface and underscoring in original.) If Michell read any
part of the plea agreement, he was more likely to have read
the boldfaced and underscored provisions outlining the
bottom-line consequences for him.
And even if Michell read and understood the contents of
his 2016 Maricopa County plea agreement, it does not
necessarily mean that he remembered the agreement’s
sentencing range minutia at the time of his charged conduct.
Cf. United States v. Werle, 35 F.4th 1195, 1205 (9th Cir.
2022) (that “he knew of [the possible imprisonment term
almost two] years earlier [at his sentencing hearing] does not
necessarily mean that he remembered it at the time he
possessed the firearm”). The only points of the agreement
that he was certain to have remembered were the ones that
directly affected him—his four-month sentence, his
probation, his fine, and the loss of his driver’s license. Even
then, over a year later he may not have remembered the
amount of his fine, just as he may not have remembered his
sentencing exposure range (unlike his fine, a fact of no
significance to him).
As Greer requires, see 141 S. Ct. at 2098, Michell points
to evidence that he can present at a new trial to show that he
did not realize at the time of the charged conduct that his
UNITED STATES V. MICHELL 27
DUI convictions were punishable by imprisonment for more
than one year. Most importantly, he points to his concurrent
four-month prison sentences. “[I]n each of our published
opinions denying relief for Rehaif errors we have cited the
fact that a defendant actually served more than one year in
prison as a reason for concluding that the defendant knew
that he had been convicted of a crime punishable by more
than one year in prison.” Werle, 35 F.4th at 1204–05
(emphasis added). Drawing from that caselaw, we explained
that “the length of time one serves in prison bears on whether
one is likely to remember that one’s convictions were
punishable by more than one year in prison.” Id. at 1205; see
also Rehaif, 139 S. Ct. at 2198 (suggesting that 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) do not apply to “a person who
was convicted of a prior crime but sentenced only to
probation, who does not know that the crime is ‘punishable
by imprisonment for a term exceeding one year’ ”) (first
emphasis added, second emphasis in original) (quoting 18
U.S.C. § 922(g)(1)).
Not only does this case fit squarely under Werle, but it’s
an even stronger case for a new trial. In Werle, the defendant
was sentenced to one year and one day for each of his
predicate convictions, 7 but he served less than a year on
each. 35 F.4th at 1203. Even so, we found that he could make
“a colorable argument at trial” that he did not know at the
time of the charged conduct—less than two years after his
7
Aside from the two predicate convictions for his felon-in-possession
charge, the defendant in Werle had been convicted of at least 18 other
crimes. See 35 F.4th at 1203. In contrast, Michell had no prior
convictions other than his juvenile conviction and his DUI convictions,
all of which stemmed from offenses that antedated the charged conduct
by more than a decade.
28 UNITED STATES V. MICHELL
most recent sentencing hearing—that his conviction was
punishable by more than a year in prison. Id. We did so even
though he “was more likely to know that he had been
convicted of a felony than another similarly situated
defendant who was sentenced to less than one year in
prison.” Id. at 1205 (emphasis added).
Because Michell was only sentenced to and only served
four months for his DUI convictions, he was less likely to
know he had been convicted of a felon-in-possession
predicate than the defendant in Werle. Even more than that
defendant, Michell could make a “colorable argument” at
trial that he did not know that his DUI convictions were
punishable by more than a year’s imprisonment. We should
follow Werle here and not treat Michell’s plea agreement as
conclusive evidence of his state of mind over a year later as
the majority does.
B
The majority also cites Michell’s statement, in his post-
arrest interview with the FBI, that “he did not have guns
himself because he was a ‘felon.’ ” Majority at 14.
Respectfully, the critical question here is not whether
Michell knew he was a “felon,” a vague term nowhere found
in §§ 922(g)(1) and 924(a)(2). 8 The critical question is
instead whether he knew, at the time of the charged conduct,
8
Michell correctly notes that as “a matter of convenience” courts often
use “felon” to describe defendants who satisfy § 922(g)(1)’s lengthy
definition, but that neither a defendant’s nor the courts’ use of that
shorthand “adequately describe[s] the element that the Government[] has
the burden of proving under § 922(g)(1)” under Rehaif. See also Werle,
35 F.4th at 1205 (“Although a violation of § 924(a)(2) and § 922(g)(1)
is colloquially referred to as being a ‘felon in possession of a firearm,’
the word ‘felon’ does not appear in the relevant statutory provisions.”).
UNITED STATES V. MICHELL 29
that his 2017 DUI convictions were punishable by
imprisonment for more than one year. His statement to his
FBI interrogators is at most probative of that question rather
than conclusive. Cf. Werle, 35 F.4th at 1206 (“[A]
defendant’s acknowledgement that he has been convicted of
a felony,” while “undoubtedly probative evidence that a
factfinder may consider in determining whether the
defendant had the requisite mens rea[,] . . . standing alone is
not necessarily conclusive . . . .”) (emphasis in original).
Nor does Michell’s statement to investigators implying
it wasn’t “legal” for him to have guns speak to whether he
knew that his DUI convictions were punishable by more than
one year of imprisonment. To begin with, the majority
ignores that Michell acknowledged that the terms of his
probation for his 2017 DUI convictions precluded his
possession of firearms. His statement was not necessarily a
reference to his status under federal law.
But more importantly, the government need not prove
that “the defendant knew his or her status prohibited firearm
ownership or possession.” United States v. Singh, 979 F.3d
697, 727 (9th Cir. 2020). That necessarily cuts in both
directions. If a defendant’s knowledge as to whether he
could possess weapons is not relevant to his defense, then
surely that same knowledge can’t be used to convict him, as
we acknowledged in Werle. See 35 F.4th at 1202–03 (“That
he knew . . . that he was not supposed to possess a firearm
do[es] not suffice” for purposes of the government’s burden
of proof.) (emphasis added). 9 The relevant inquiry here is
9
“There are many reasons one might be prohibited from possessing a
firearm . . . . Thus, the fact that a defendant knows that he may not
possess a firearm is not conclusive evidence that he knows that he has
30 UNITED STATES V. MICHELL
whether Michell “knew that the maximum potential sentence
to which he was exposed for his [DUI convictions] exceeded
one year.” Id. at 1203. That Michell understood he was a
prohibited possessor does not matter.
C
Finally, the majority cites Michell’s trial testimony.
Majority at 14. The first cited passage reads as follows:
Defense Counsel: So you know that there
were aggravated DUI charges, you know to
be a felony?
Michell: Yes, sir.
(Emphasis added.)
Once again, the majority strays off course. Of course
Michell knew at the time of trial that his DUI convictions
were “felonies” (whatever that means, see above note 8) for
purposes of federal law. After all, that’s what the man was
on trial for. But the relevant question is Michell’s state of
mind “when he possessed the firearm,” Werle, 35 F.4th at
1205 (emphasis added) (quoting Greer, 141 S. Ct. at 2095).
Because this question was asked and answered in the present
tense, Michell’s response lacks probative value.
The second passage cited by the majority reads as
follows:
Defense Counsel: Are you a prohibited
possessor?
been convicted of a crime punishable by more than one year in prison.”
Id. at 1203 n.4.
UNITED STATES V. MICHELL 31
Michell: Yes, sir. After my DUI matter, that’s
why there was no guns, no—I mean, I’m not
going to lose my opportunity to be . . . with
my daughters.
(Emphasis added.)
Unlike the colloquy discussed above, Michell’s answer
speaks to his state of mind at the time of the charged conduct
as well as at trial. But as explained above, it is of no moment
if Michell knew at the time of the charged conduct “that he
was not supposed to possess a firearm” for purposes of
federal law, 10 because that “does not suffice” to establish the
government’s Rehaif burden. Werle, 35 F.4th at 1202–03.
“What matters is whether [he] knew that the maximum
potential sentence to which he was exposed for his previous
crimes exceeded one year.” Id.
D
As the majority points out, Michell must demonstrate
that there exists “a reasonable probability that, but for the
error, the outcome of the proceeding would have been
different.” Majority at 8 (quoting Greer, 141 S. Ct. at 2096).
The Supreme Court has explained that “[a] ‘reasonable
probability’ of a different result is . . . shown when the [error]
‘undermines confidence in the outcome of the trial.’ ” Kyles
v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473
U.S. at 678).
10
Even if it were relevant, the trial testimony cited by the majority does
not necessarily establish that Michell knew at the time of the charged
conduct that he was a prohibited possessor for purposes of federal law.
As discussed above, Michell acknowledged at trial that the probation
terms of his 2017 DUI convictions precluded his possession of firearms.
32 UNITED STATES V. MICHELL
To undermine such confidence, we know that the
defendant need not show that he “more likely than not”
would “have received a different verdict” without the error.
Id.; cf. Strickler v. Greene, 527 U.S. 263, 298 (1999) (Souter,
J., concurring) (“[T]he continued use of the term
‘probability’ raises an unjustifiable risk of misleading courts
into treating it as akin to the more demanding standard,
‘more likely than not.’ ”). 11 “Reasonable probability”
therefore means some chance that is less than 51 percent at
the high end of the range.
On the other hand, we also know that plain error review
should not be “too easy” for defendants. See Dominguez
Benitez, 542 U.S. at 82 (noting that the policy of Federal
Rule of Criminal Procedure 52(b) is “to encourage timely
objections and reduce wasteful reversals by demanding
strenuous exertion to get [plain error] relief”). To that end,
the Supreme Court’s cases teach that “reasonable
probability” is more demanding for defendants than a mere
“reasonable possibility.” See Greene, 527 U.S. at 291(explaining that a defendant must “establish a reasonable
probability of a different result,” not just “a reasonable
possibility”) (emphasis in original); see also United States v.
Agurs, 427 U.S. 97, 109–10 (1976) (“[T]he mere possibility
that an item of undisclosed information might have aided the
defense, or might have affected the outcome of the trial, does
not establish ‘materiality’ in the constitutional sense.”);
Greene, 527 U.S. at 300 (Souter, J., concurring) (explaining
that “ ‘reasonable possibility’ . . . and ‘reasonable
probability’ express distinct levels of confidence concerning
11
The reasonable probability test “is not a sufficiency of evidence test,”
as “[t]he possibility of an acquittal on a criminal charge does not imply
an insufficient evidentiary basis to convict.” Kyles, 514 U.S. at 434–35.
UNITED STATES V. MICHELL 33
the hypothetical effects of errors on decisionmakers’
reasoning”). 12
As the Supreme Court in another context has defined a
“reasonable possibility” as meaning as low as a 10 percent
chance, see INS v. Cardoza-Fonseca, 480 U.S. 421, 440
(1987) (explaining that “a 10% chance of being . . .
persecuted” is a “reasonable possibility” of such persecution
occurring), a “reasonable probability” is something less than
51 percent (“more likely than not”) but more than 10 percent
(“reasonable possibility”). In view of Justice Souter’s
suggestion that the difference between “reasonable
probability” and “reasonable possibility” is “slight” and that
the former is closer to the latter than it is to “more likely than
not,” see Greene, 527 U.S. at 300 (Souter, J., concurring),
but also keeping in mind the Supreme Court’s admonition
that plain error relief should not be “too easy,” Dominguez
Benitez, 542 U.S. at 82, I think we can define “reasonable
probability” as roughly a 25 percent likelihood. 13
On this record, as augmented through judicial notice,
there is modest evidence that Michell “knowingly” violated
§ 922(g)(1) as Rehaif requires: The government’s case rests
12
But see Irons, 31 F.4th at 713, 715 (using “reasonable possibility” as
synonymous with “reasonable probability”).
13
I acknowledge that Justice Scalia condemned seeking to define
“ineffable gradations of probability” other than “beyond a reasonable
doubt” and “more likely than not” as “beyond the ability of the judicial
mind (or any mind) to grasp, and thus harmful rather than helpful to the
consistency and rationality of judicial decisionmaking.” Dominguez
Benitez, 542 U.S. at 86–87 (Scalia, J., concurring in the judgment). But
unless and until the Supreme Court adopts the “more likely than not”
standard advocated by Justice Scalia, see id., lower court judges on plain
error review must grapple with divining the meaning of “reasonable
probability.”
34 UNITED STATES V. MICHELL
on statements Michell made that do not speak directly to his
state of mind at the time of the charged conduct and on an
ambiguous sentencing-range provision that Michell had no
reason to focus on—much less commit to memory—when
he signed the 2016 Maricopa County plea agreement more
than a year before his charged conduct. The weakness of the
government’s case, when coupled with the evidence
negating his mens rea that Michell says he will introduce in
any new trial—specifically, that the Arizona courts
adjudicating his DUI offenses sentenced him to only four
months and that he only served the same—leads me to
conclude that the likely outcome of any new trial is a
coinflip. Michell therefore has more than carried his burden
of demonstrating at least a 25 percent likelihood “that a
properly instructed jury would have had a reasonable doubt”
as to whether he knew at the time of the charged conduct that
his DUI convictions exposed him to imprisonment for more
than one year. Irons, 31 F.4th at 715. Because that likelihood
is “sufficient to undermine confidence in the outcome” of the
proceeding, id. at 714 (quoting Dominguez Benitez, 542 U.S.
at 83), in my judgment the district court’s Rehaif errors
affected his substantial rights.
III
As Michell has satisfied his burden to show that plain
error affected his substantial rights, in my view we should
exercise our discretion to correct this error because it
seriously affects “the fairness, integrity[, and] public
reputation of judicial proceedings.” Greer, 141 S. Ct. at 2097
(quoting Rosales-Mireles, 138 S. Ct. at 1905). Michell “was
deprived of his basic right to have the jury decide every
element of the offense charged. The error also led him to
forego possibly winning defenses and trial tactics. And the
evidence that the jury would have convicted him anyway is
UNITED STATES V. MICHELL 35
too thin for us to say that close is close enough.” United
States v. Gear, 9 F.4th 1040, 1051 (9th Cir. 2021) (Bumatay,
J., concurring in part and dissenting in part); see also Irons,
31 F.4th at 715 (“Removing the key disputed issue at trial
from the jury’s consideration certainly casts doubt on the
fairness of the proceedings, even if Irons’ own counsel failed
to catch the error.”). And because the government’s case
against Michell on the element of his knowledge is marginal,
reversal is no threat to “the integrity or fairness of the
proceedings.” Irons, 35 F.4th at 715 (quoting United States
v. Turchin, 21 F.4th 1192, 1203 (9th Cir. 2022)).
* * *
The constitutional right to a “public trial, by an impartial
jury” on all elements of a charged offense is a lone citizen’s
last line of defense against the vast power of the United
States Government. U.S. Const. amend. VI; see also 3
J. Story, Commentaries on the Constitution of the United
States § 1774, at 653 (1833) (“[T]rial by jury” protects
“against a spirit of oppression . . . on the part of rulers, . . .
the prejudices of judges, who may partake of the wishes and
opinions of the government, and . . . the passions of the
multitude . . . .”). Because the evidence (even as augmented
through judicial notice) against Michell is modest rather than
overwhelming, I would send this case back for a new
indictment and new trial. In such a trial, Michell could for
the first time fully defend himself before a properly
instructed jury. I respectfully dissent from the majority’s
affirmance of his conviction.