United States v. Lamar Johnson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10252
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-00251-WHA-1
LAMAR JOHNSON, ORDER AND
Defendant-Appellant. AMENDED
OPINION
On Remand From the United States Supreme Court
Argued and Submitted March 12, 2020
San Francisco, California
Filed June 25, 2020
Amended October 26, 2020
Before: J. Clifford Wallace, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Order;
Opinion by Judge Watford
2 UNITED STATES V. JOHNSON
SUMMARY *
Criminal Law
On remand from the Supreme Court, the panel filed
(1) an amended opinion affirming the defendant’s
convictions for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1); and (2) an order denying
a petition for panel rehearing and denying on behalf of the
court a petition for rehearing en banc.
After the panel issued its original opinion, the Supreme
Court decided Rehaif v. United States, 139 S. Ct. 2191
(2019), which held that a defendant may be convicted under
§ 922(g) only if government proves that the defendant “knew
he belonged to the relevant category of persons barred from
possessing a firearm”—in this case, those convicted of a
crime punishable by more than one year of imprisonment.
The Supreme Court granted the defendant’s petition for
certiorari and remanded for further consideration in light of
Rehaif.
The panel wrote that the defendant’s argument on
remand is best understood not as a challenge to the
sufficiency of the evidence, but rather as a claim that the
district court applied the wrong legal standard in assessing
his guilt—specifically, by omitting the knowledge-of-status
element now required under Rehaif. The panel applied the
plain-error review standard under Fed. R. Crim. P. 52(b), and
noted that the government conceded that the first two prongs
are met: the district court erred by not requiring the
*
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. JOHNSON 3
government to prove the defendant’s knowledge of his status
as a convicted felon, and that the error is now clear following
Rehaif. The panel assumed without deciding that the district
court’s error affected the defendant’s substantial rights,
satisfying the third prong.
The panel wrote that only the fourth prong—as to which
the defendant must show that the district court’s error
seriously affected the fairness, integrity, or public reputation
of judicial proceedings—remained in dispute. The panel
explained that this requirement helps enforce one of Rule
52(b)’s core policies, which is to reduce wasteful reversals
by demanding strenuous exertion to get relief for unreserved
error. In assessing whether the defendant satisfied the fourth
prong, the panel concluded that it is appropriate in this case
to review the entire record on appeal—not just the record
adduced at trial—because the record on appeal in this case
contains evidence the government would introduce to prove
that the defendant knew of his status as a convicted felon.
The panel concluded that given the overwhelming and
uncontroverted nature of that evidence, the defendant cannot
show that refusing to correct the district court’s error would
result in a miscarriage of justice.
COUNSEL
Robin Packel (argued), Assistant Federal Public Defender;
Steven G. Kalar, Federal Public Defender; Office of the
Federal Public Defender Oakland, California; for
Defendant-Appellant.
Alexis J. Loeb (argued) and Philip Kopczynski, Assistant
United States Attorneys; Merry Jean Chan, Chief, Appellate
Section, Criminal Division; David L. Anderson, United
4 UNITED STATES V. JOHNSON
States Attorney; United States Attorney’s Office, San
Francisco, California; for Plaintiff-Appellee.
Doug Keller, The Law Office of Doug Keller, San Diego,
California; Devin Burstein, Warren & Burstein, San Diego,
California; for Amici Curiae Doug Keller and Devin
Burstein.
ORDER
The opinion filed on June 25, 2020, and published at 963
F.3d 847, is amended by the opinion filed concurrently with
this order.
With these amendments, the panel unanimously votes to
deny the petition for panel rehearing. Judge Rawlinson and
Judge Watford voted to deny the petition for rehearing en
banc, and Judge Wallace so recommends. The full court has
been advised of the petition for rehearing en banc, and no
judge requested a vote on whether to rehear the matter en
banc. Fed. R. App. P. 35. The petition for panel rehearing
and rehearing en banc, filed August 7, 2020, is DENIED.
No further petitions for panel rehearing or rehearing en
banc will be entertained.
UNITED STATES V. JOHNSON 5
OPINION
WATFORD, Circuit Judge:
When this case was last before us, we affirmed Lamar
Johnson’s convictions for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). United States
v. Johnson, 913 F.3d 793 (9th Cir. 2019). After we issued
our opinion, the Supreme Court decided Rehaif v. United
States, 139 S. Ct. 2191 (2019). There, the Court held that a
defendant may be convicted under § 922(g) only if the
government proves that the defendant “knew he belonged to
the relevant category of persons barred from possessing a
firearm”—in our case, those convicted of a crime punishable
by more than one year of imprisonment. Id. at 2200.
Johnson filed a petition for certiorari in which he argued for
the first time that the government failed to prove at trial that
he knew of his status as a convicted felon. The Supreme
Court granted his petition, vacated the judgment, and
remanded the case for further consideration in light of
Rehaif. 140 S. Ct. 440 (2019).
Following remand, we received supplemental briefs
from the parties and heard oral argument. After considering
the parties’ contentions regarding the effect of Rehaif, we
again affirm Johnson’s convictions.
The background facts may be briefly summarized. The
government charged Johnson with various drug and firearms
offenses, including two counts of being a felon in possession
of a firearm. Johnson moved to suppress the firearms and
other evidence found during searches of his home and car.
The district court denied the motion. To facilitate appellate
review of that ruling, Johnson waived his right to a jury trial
and agreed to proceed with a stipulated-facts bench trial. In
lieu of calling witnesses, the parties submitted a written
6 UNITED STATES V. JOHNSON
stipulation describing the agreed-upon facts, which
included, as relevant here, that two different firearms were
found in Johnson’s possession on separate dates and that,
prior to the dates in question, he “had been convicted of a
felony, i.e., a crime punishable by imprisonment for a term
exceeding one year.” On the basis of the stipulated facts, the
district court found Johnson guilty of violating 18 U.S.C.
§ 922(g)(1).
Johnson frames his argument on remand as a challenge
to the sufficiency of the evidence. He contends that his
§ 922(g) convictions must be reversed because the
government did not introduce sufficient evidence
establishing that he knew of his status as a convicted felon.
Johnson did not raise this challenge in the district court,
which is not surprising. At the time of Johnson’s trial, our
circuit’s law did not require the government to prove that a
defendant knew of his status as a convicted felon. See
United States v. Miller, 105 F.3d 552, 555 (9th Cir. 1997).
The Supreme Court’s decision in Rehaif first imposed that
requirement after Johnson’s trial concluded.
In our initial opinion on remand, we accepted Johnson’s
framing of the issue and analyzed his argument as a
challenge to the sufficiency of the evidence. Because
Johnson had not raised his sufficiency-of-the-evidence
challenge in the district court, we reviewed his claim for
plain error under Federal Rule of Criminal Procedure 52(b).
See United States v. Johnson, 963 F.3d 847, 850 (9th Cir.
2020).
After we filed our opinion, Johnson petitioned for
rehearing and rehearing en banc. In conjunction with that
petition, we received a brief from amici curiae drawing our
attention to United States v. Atkinson, 990 F.2d 501 (9th Cir.
1993) (en banc), a case that neither of the parties had
UNITED STATES V. JOHNSON 7
previously cited. In Atkinson, our court held that a defendant
who pleads not guilty and proceeds to a bench trial need not
move for a judgment of acquittal in order to preserve a
challenge to the sufficiency of the evidence. Id. at 503. “A
motion to acquit is superfluous,” we reasoned, “because the
plea of not guilty has brought the question of the sufficiency
of the evidence to the court’s attention.” Id. Because
Johnson pleaded not guilty and was convicted following a
bench trial, amici argued that we should have reviewed
Johnson’s sufficiency-of-the-evidence challenge de novo
rather than under the plain-error standard. We asked the
government and Johnson to submit a second round of
supplemental briefs addressing the impact of Atkinson on the
outcome of this appeal.
Having reviewed the parties’ submissions, we reaffirm
our conclusion that Rule 52(b)’s plain-error standard
governs here. Our reasoning differs, however, from that
offered in our original opinion.
We agree with the government that, although Johnson
has framed his argument as a challenge to the sufficiency of
the evidence, that is not in fact the correct way to conceive
of it. Our court has held that a sufficiency challenge must be
assessed against the elements that the government was
required to prove at the time of trial. United States v. Kim,
65 F.3d 123, 126–27 (9th Cir. 1995); see United States v.
Weems, 49 F.3d 528, 530–31 (9th Cir. 1995). Johnson does
not contest that the government introduced evidence
sufficient to satisfy each of the elements required for
conviction at the time of his trial. Thus, Johnson’s argument
is best understood not as a challenge to the sufficiency of the
evidence, but rather as a claim that the district court applied
the wrong legal standard in assessing his guilt—specifically,
by omitting the knowledge-of-status element now required
8 UNITED STATES V. JOHNSON
under Rehaif. The rule we announced in Atkinson therefore
does not apply here.
In a bench trial, a district court’s legal error regarding the
elements of the offense is reviewed in the same way we
review an erroneous jury instruction regarding the elements
of the offense. United States v. Argueta-Rosales, 819 F.3d
1149, 1156 (9th Cir. 2016). A jury instruction that omits an
element of the offense is reviewed for plain error if the
defendant failed to object in the district court. Johnson v.
United States, 520 U.S. 461, 465–66 (1997). That remains
true even if “a solid wall of circuit authority” would have
rendered any objection futile at the time of trial. United
States v. Keys, 133 F.3d 1282, 1284, 1286–87 (9th Cir. 1998)
(en banc). Under this framework, Johnson’s failure to object
at trial to the district court’s omission of the knowledge-of-
status element triggers review under the plain-error standard
of Rule 52(b).
To establish plain error, Johnson must show that (1) there
was an error, (2) the error is clear or obvious, (3) the error
affected his substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of
judicial proceedings. United States v. Benamor, 937 F.3d
1182, 1188 (9th Cir. 2019). The government concedes that
the first two prongs are met: The district court erred by not
requiring the government to prove Johnson’s knowledge of
his status as a convicted felon, and that error is now clear
following Rehaif. We will further assume without deciding
that the district court’s error affected Johnson’s substantial
rights, thereby satisfying the third prong. Only the fourth
prong remains in dispute.
Under the fourth prong, Johnson must show that the
district court’s error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. That
UNITED STATES V. JOHNSON 9
requirement helps enforce one of Rule 52(b)’s core policies,
which is to “reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error.”
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).
As the Supreme Court has stated, Rule 52(b) authorizes
courts to correct unpreserved errors, but that power “is to be
‘used sparingly, solely in those circumstances in which a
miscarriage of justice would otherwise result.’” United
States v. Young, 470 U.S. 1, 15 (1985) (quoting United States
v. Frady, 456 U.S. 152, 163 n.14 (1982)).
The central issue we must decide is whether, in assessing
the fourth prong of the plain-error standard, we may consider
the entire record on appeal or only the record developed at
trial. If we are limited to considering the trial record alone,
as Johnson urges, his case for reversal appears strong. The
factual stipulation submitted by the parties does not state
whether Johnson knew he had been convicted of a crime
punishable by imprisonment for more than a year. It merely
states, as a matter of historical fact, that Johnson had
previously been convicted of “a crime punishable by
imprisonment for a term exceeding one year.” Without more
information about the nature of the crime or the length of the
sentence imposed, a rational trier of fact would be hard
pressed to infer that Johnson knew of his prohibited status as
required under Rehaif. And that failure of proof might well
be deemed to affect the fairness or integrity of the judicial
proceedings resulting in his convictions. See United States
v. Cruz, 554 F.3d 840, 851 (9th Cir. 2009). For the reasons
explained below, however, we think it is appropriate in this
case to review the entire record on appeal—not just the
record adduced at trial—in assessing whether Johnson has
satisfied the fourth prong of plain-error review.
10 UNITED STATES V. JOHNSON
Because Johnson’s challenge is properly understood as a
claim of trial error, retrial would be permitted even if he
succeeded in establishing plain error on appeal. See Weems,
49 F.3d at 530 (citing United States v. DiFrancesco, 449
U.S. 117 (1980)). To satisfy the fourth prong when a retrial
would be permissible, a defendant must offer a plausible
basis for concluding that an error-free retrial might end more
favorably. For if the hypothetical retrial is certain to end in
the same way as the first one, then refusing to correct an
unpreserved error will, by definition, not result in a
miscarriage of justice. Indeed, choosing to correct the error
in those circumstances would produce the very sort of
“wasteful reversals” that Rule 52(b) aims to avoid.
Dominguez Benitez, 542 U.S. at 82.
The Supreme Court’s most analogous plain-error cases
support this view, albeit without analyzing the issue
explicitly in these terms. In Johnson v. United States,
520 U.S. 461 (1997), the Court was asked to decide whether
the district court’s plain error in failing to submit an element
of the offense to the jury warranted relief under Rule 52(b).
Id. at 463. The Court assumed that the error affected the
petitioner’s substantial rights but held that she could not
satisfy the fourth prong of plain-error review because the
evidence supporting the omitted element—materiality—was
“overwhelming” and “essentially uncontroverted.” Id.
at 469–70. The Court stressed that, even in her briefs on
appeal, “petitioner has presented no plausible argument that
the false statement under oath for which she was convicted
. . . was somehow not material to the grand jury
investigation.” Id. at 470. Presumably, if the petitioner had
articulated a plausible argument for why the jury could have
found in her favor on materiality, remand for a retrial at
which the jury was required to decide that element would
have been warranted. But in the absence of any such
UNITED STATES V. JOHNSON 11
argument, the Court concluded that no miscarriage of justice
would result by leaving the district court’s error uncorrected.
See id.
The Court reached the same conclusion in United States
v. Cotton, 535 U.S. 625 (2002). That case involved a drug-
trafficking prosecution in which the indictment failed to
allege a fact—drug quantity—required under the rule
established in Apprendi v. New Jersey, 530 U.S. 466 (2000).
See Cotton, 535 U.S. at 627–28. As in Johnson, the Court
assumed that the defendants’ substantial rights were affected
by the error but found the fourth prong of plain-error review
had not been satisfied. Id. at 632–33. Relying on the
“overwhelming and uncontroverted” evidence establishing
that the defendants had trafficked in quantities well above
the relevant thresholds, the Court held that the error did not
seriously affect the fairness, integrity, or public reputation of
their proceedings. Id. at 633–34. After cataloging the
evidence introduced at trial, the Court observed: “Surely the
grand jury, having found that the conspiracy existed, would
have also found that the conspiracy involved at least
50 grams of cocaine base.” Id. at 633. In other words, no
point would have been served by reversing the defendants’
convictions and requiring the prosecution to begin anew with
an indictment issued by a properly instructed grand jury.
Johnson and Cotton confirm that the fourth prong of
plain-error review is designed, in part, to weed out cases in
which correction of an unpreserved error would ultimately
have no effect on the judgment. In those two cases, the Court
was not attempting to determine whether the grand and petit
juries had actually made the findings required for indictment
or conviction, notwithstanding the challenged errors. It was
undisputed that the juries had not done so, because they had
not been asked to make those findings. The Court was thus
12 UNITED STATES V. JOHNSON
engaged in making a predictive judgment about whether, if
the defendants’ convictions were reversed and the
prosecution or trial had to start over, the outcome would
potentially be any different. In the face of overwhelming
and uncontroverted evidence suggesting that the answer was
no, and with the defendants offering no plausible argument
to conclude otherwise, the Court held that the errors in
question did not seriously affect the fairness, integrity, or
public reputation of judicial proceedings. In fact, the Court
stated, “it would be the reversal of [the defendant’s
conviction] which would have that effect.” Johnson,
520 U.S. at 470 (emphasis added); see Cotton, 535 U.S. at
634.
With that understanding of the inquiry required when a
retrial would be permissible, we see no basis for limiting our
review under the fourth prong to the record adduced at trial.
In a case like this one, in which the error under review
involves omission of an element of the offense, the record
on appeal will often not disclose what additional evidence
the government would introduce to prove an element that it
had no reason to prove during the first trial. But if the record
on appeal does disclose what that evidence consists of, and
the evidence is uncontroverted, we can think of no sound
reason to ignore it when deciding whether refusal to correct
an unpreserved error would result in a miscarriage of justice.
In this case, the record on appeal contains additional
evidence the government would introduce to prove that
Johnson knew of his status as a convicted felon. And given
the overwhelming and uncontroverted nature of that
evidence, Johnson cannot show that refusing to correct the
district court’s error would result in a miscarriage of justice.
According to the presentence report prepared in this case, at
the time he possessed the firearms, Johnson had sustained
UNITED STATES V. JOHNSON 13
the following convictions: a 1998 felony conviction for
which he received a sentence of 28 months in prison; a 2004
felony conviction for which he received a sentence of two
years in prison; and a 2007 felony conviction for which he
was again sentenced to two years in prison. In his
supplemental brief, Johnson does not dispute the accuracy of
the presentence report’s description of his criminal history.
In light of the sentences imposed in his earlier cases, Johnson
cannot plausibly argue that a jury (or judge, if he opted again
for a bench trial) would find that he was unaware of his status
as someone previously convicted of an offense punishable
by more than a year in prison. After all, he had in fact
already served three prior prison sentences exceeding one
year. Cf. Rehaif, 139 S. Ct. at 2198 (noting that a defendant
“who was convicted of a prior crime but sentenced only to
probation” might be able to claim that he did not know he
had been convicted of a crime punishable by more than a
year of imprisonment).
Several of our sister circuits have relied on
uncontroverted evidence that a defendant was sentenced to
more than a year in prison when rejecting post-Rehaif
challenges to trial verdicts under plain-error review. See,
e.g., United States v. Maez, 960 F.3d 949, 959–60 (7th Cir.
2020); United States v. Miller, 954 F.3d 551, 559–60 (2d Cir.
2020); see also Benamor, 937 F.3d at 1189. 1 We conclude
that such evidence will ordinarily preclude a defendant from
satisfying the fourth prong of plain-error review when
challenging the district court’s failure to require the
1
Courts have relied on similar evidence in rejecting post-Rehaif
challenges in the guilty-plea context as well. See, e.g., United States v.
Williams, 946 F.3d 968, 973–74 (7th Cir. 2020); United States v.
Burghardt, 939 F.3d 397, 404 (1st Cir. 2019). But see United States v.
Gary, 954 F.3d 194 (4th Cir. 2020).
14 UNITED STATES V. JOHNSON
government to prove that the defendant knew of his status as
a convicted felon.
AFFIRMED.