65 F.4th 411
9th Cir.2023Background
- FBI searched Michell’s home in Dec. 2017 and seized ammunition, spent casings, a target, and evidence suggesting a private rifle sale; text messages linked him to a buyer who identified him at the meeting.
- Michell had multiple prior convictions: a 1997 aggravated-assault juvenile conviction (served ~20 months) and two DUI convictions (2003 conduct; plea and conviction in 2016–2017) with plea documents showing sentencing ranges exceeding one year, though he served four months on the DUIs.
- After arrest, Michell told agents he did not possess guns because he was a “felon”; at trial he acknowledged the DUIs were felonies and that he was a prohibited possessor.
- A jury convicted Michell of two counts under 18 U.S.C. §§ 922(g)(1) and 924(a)(2); he was sentenced to 30 months’ imprisonment.
- Following the Supreme Court’s decision in Rehaif v. United States (2019), which requires the government to prove the defendant knew both that he possessed a firearm and that he belonged to the category barred from possession, Michell appealed, arguing the district court’s failure to give a Rehaif instruction was plain error.
- The Ninth Circuit affirmed, holding (1) the omission was plain error but (2) it did not affect Michell’s substantial rights because the record and judicially noticed conviction documents showed no reasonable probability a properly instructed jury would find he lacked the required knowledge.
Issues
| Issue | United States' Argument | Michell's Argument | Held |
|---|---|---|---|
| Whether failure to instruct the jury under Rehaif was plain error affecting substantial rights | The error was plain but did not affect substantial rights because plea documents, statements, and trial testimony establish Michell knew his convictions were punishable by >1 year | The missing instruction was plain error and there is a reasonable probability a properly instructed jury would acquit because he may not have known his DUIs were punishable by >1 year | Affirmed: omission was plain error but did not affect substantial rights; convictions stand |
| Whether appellate court may take judicial notice of conviction/plea documents outside the trial record on plain-error review | Appellate courts may consider conviction records and other reliable materials beyond the trial record when assessing whether an instructional Rehaif error affected substantial rights | Argued court should be limited to the trial record and not take judicial notice to fill gaps | Held: Court may take judicial notice of conviction records on plain-error review (consistent with Greer and circuit precedent) |
| Whether Michell’s admissions ("felon" or "prohibited possessor") and trial testimony suffice to show knowledge of status required by Rehaif | Admissions and testimony (and plea paperwork) are probative and, together, leave no reasonable probability a jury would find he lacked knowledge | Admissions are ambiguous or pertain to trial-time awareness; plea paperwork and sentencing-range language are not conclusive evidence he remembered or understood the >1-year exposure at the time of possession | Held: Those admissions and plea documents suffice to negate a reasonable probability of acquittal; they demonstrate Michell knew his convictions were punishable by >1 year |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (Supreme Court holding government must prove defendant knew both possession and status barred him under § 922(g))
- Greer v. United States, 141 S. Ct. 2090 (2021) (plain-error framework for Rehaif instructional omissions; appellate consideration of the entire record)
- United States v. Benamor, 937 F.3d 1182 (9th Cir. 2019) (Ninth Circuit treating failure to give Rehaif instruction as plain error)
- United States v. Werle, 35 F.4th 1195 (9th Cir. 2022) (discusses relevance of actual time served to whether defendant knew predicate exposed him to >1 year)
- United States v. Dior, 671 F.2d 351 (9th Cir. 1982) (discussed limits on judicial notice post-trial but distinguishable on plain-error review)
- United States v. Singh, 979 F.3d 697 (9th Cir. 2020) (Rehaif knowledge-of-status discussion in circuit precedent)