UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT M. TRIGGS, Defendant-Appellant.
No. 19-1704
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 22, 2020 — DECIDED JULY 1, 2020
Appeal from the United States District Court for the Western District of Wisconsin. No. 16-cr-51-jdp-1 — James D. Peterson, Chief Judge.
SYKES, Circuit Judge. Robert Triggs was indicted for unlawfully possessing a firearm in violation of
Soon after he filed his notice of appeal, the Supreme Court issued its decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), clarifying the elements of a
The plain-error standard governs our review of the Rehaif issue. The government agrees that the error is plain. The disputed question is whether it was prejudicial, which in this context requires Triggs to establish a reasonable probability that he would not have pleaded guilty if he had known the government had to prove the Rehaif knowledge element. That, in turn, depends on whether Triggs can plausibly argue that he did not know he belonged to the relevant category of persons disqualified from firearm possession—more specifically, that he did not know his ten-year-old conviction was a “misdemeanor crime of domestic violence” as that phrase is defined for purposes of
Triggs has made the required showing to withdraw his plea. In contrast to some of the other categories of prohibited persons listed in
I. Background
In November 2015 Triggs was summoned to his son’s school in Tomah, Wisconsin, to discuss violent social-media threats his son and other students made against a teacher. Tomah police were investigating and wanted to account for any firearms that the students may have access to. Triggs acknowledged that he owned several hunting rifles and agreed to let the officers into his home to inspect them.
En route to the home, Officer Aaron Hintz checked Triggs’s criminal record and discovered that he had a 2008 misdemeanor battery conviction that might disqualify him from possessing firearms because it appeared to involve domestic abuse. When the officers arrived at the home, Triggs directed them to his three hunting rifles hanging unsecured in a wooden gun rack in the living room. A loaded rifle magazine and additional ammunition sat on a shelf underneath the rack. Officer Hintz inquired about the 2008 battery conviction and asked Triggs if he had tried to purchase a gun since that time. Triggs said that he had tried and was denied but hadn’t read the document notifying him of the denial. Officer Hintz confirmed that Triggs was prohibited from possessing firearms and confronted him with this information. Triggs claimed ignorance of the prohibition and voluntarily surrendered his guns. The matter was referred to the United States Attorney for prosecution.
The 2008 conviction for misdemeanor battery arose from a dispute between Triggs and his then-girlfriend Nicole
The sheriff’s office referred the incident to local prosecutors as a felony strangulation/suffocation offense, but the assistant district attorney charged it as a misdemeanor battery in violation of
Triggs represented himself in the case. In plea negotiations the prosecutor offered to dismiss the theft and property-damage counts if Triggs would plead no contest to the battery and bail-jumping counts. The prosecutor also agreed to recommend a withheld sentence and 18 months of probation. Triggs accepted the deal. He filled out and signed a waiver-of-counsel form and a plea questionnaire and entered no-contest pleas to battery and bail jumping. The judge accepted the waiver of counsel and no-contest pleas and placed Triggs on probation for 18 months, as the prosecutor recommended. The remaining counts were dismissed. The judgment of conviction includes a domestic-abuse surcharge as part of Triggs’s court costs. See
Based on this 2008 misdemeanor battery conviction, in May 2016 a federal grand jury returned a one-count indictment against Triggs alleging a violation of
II. Discussion
We begin (and end) with the Rehaif error. Triggs asks us to permit him to withdraw his guilty plea because Rehaif announced a new understanding of the elements of the crime of unlawful firearm possession under
Under the plain-error standard, Triggs must establish that the Rehaif error is clear or obvious and affected his substantial rights; if he does so, we may correct the error if it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. The government concedes that the Rehaif error is clear. See
Before addressing this question, we pause to note that some important follow-on Rehaif issues are now resolved in this circuit, with implications for this appeal. For example, Triggs argues that Rehaif errors should be considered structural and thus automatically prejudicial. We recently rejected that argument in United States v. Maez, 960 F.3d 949, 957–58 (7th Cir. 2020). Our decision in Maez also answered a lingering question about the scope of the Rehaif knowledge element: does
We rejected the latter reading of Rehaif because it would impermissibly gloss the term “knowingly” in this statutory scheme with a willfulness requirement. Id. Instead, we understood Rehaif to hold that
Applying these understandings here, it’s now clear that to convict Triggs at trial, the government had to prove that he knew he had been convicted of a “misdemeanor crime of
Many prosecutions under
(33)(A) [T]he term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
(B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
Given the comparative complexity of this definition, the guilty-plea calculus changes. Rehaif improves Triggs’s trial prospects, giving him at least a plausible argument that he was unaware that his 2008 battery conviction is a crime of this nature. At the time of his guilty plea, he was facing trial without a clear defense as to any of the elements of
Beyond the complexity of the statutory definition, the messy nature of the proceedings that led to Triggs’s 2008 conviction makes the government’s burden on the Rehaif element that much more challenging. First, and importantly, Triggs did not have a lawyer. Though he signed a waiver-of-counsel form and the judge conducted an on-the-record colloquy before accepting it, the fact remains that Triggs did not have the assistance of legal counsel to explain the elements of the offense or the implications of his no-contest plea.
The criminal complaint, moreover, was entirely conclusory and not quite correct, labeling the charge “misdemeanor battery, domestic abuse” when there is no such crime in Wisconsin. Instead, the crime charged in the complaint is simple battery in violation of
Compounding the government’s proof problems, the plea questionnaire that Triggs signed and submitted was woefully incomplete and unclear. The questionnaire has a box for the defense attorney to enter the crime to which the defendant intends to plead guilty or no contest. The box is empty; the offense of battery is not named, the relevant statute is not cited, and the elements of the crime do not appear anywhere on the form. (Nor is bail jumping mentioned.) A two-page document listing the elements of some common criminal offenses is attached to the questionnaire. The elements of battery are listed on this document, but the corresponding checkbox is not marked and there is no indication whatsoever that the elements were made known to Triggs.
The transcript of the plea hearing reflects that the judge conducted only a brief and perfunctory colloquy before accepting Triggs’s no-contest pleas. The judge did not advise him of the elements of either of the offenses to which he was pleading no contest. Nor did the judge mention a firearm prohibition.
We do not mean to suggest that Triggs’s underlying battery conviction was procedurally invalid. But the record of these proceedings is important evidence of whether Triggs knew that he had been convicted of a misdemeanor crime of domestic violence as defined in
To be sure, the record contains evidence that works against Triggs on the Rehaif element, including the fact that he tried to buy a gun since the 2008 conviction and was turned down. But it’s not necessary to weigh Triggs’s likelihood of success at trial. “[T]he reasonable probability standard is not the equivalent of a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” Williams, 946 F.3d at 973 (quotation marks omitted). What matters is that in light of Rehaif, he has a plausible defense. Triggs has carried his burden to establish a reasonable probability that he would not have pleaded guilty had he known of the government’s Rehaif burden.
This is a proper case to exercise our discretionary authority to correct an unpreserved error. A conviction entered on an unknowing guilty plea violates “the first and most universally recognized requirement of due process”—namely, that a defendant receive “real notice of the true nature of the charge against him.” Bousley v. United States, 523 U.S. 614, 618 (1998) (quotation marks omitted). Accordingly, we VACATE the judgment and REMAND for further proceedings.