In United States v. Johnson, --- F.3d ---, No. 17-10252 (9th Cir. 2020), the Court affirmed the defendant's conviction for being a felon in possession of a firearm. This was a case remanded by the Supreme Court in light of Rehaif v. United States, 139 S. Ct.
2191 (2019) (holding 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”).
On remand, the Court basically held that the defendant does not get the full benefit of the change in the law, but the government does.
As to the standard of review, the Court said this:
Johnson did not argue in the district court that the evidence was insufficient to sustain his convictions, which is understandable. 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 intervening decision in Rehaif has of course changed the law in that regard. Nevertheless, because Johnson did not raise his sufficiency-of-the-evidence challenge in the district court, we review that challenge for plain error under Federal Rule of Criminal Procedure 52(b).
In other words, although the defendant had no reason to make a futile Rule 29 motion, the fact that he did not is held against him.
But a different rule applied to the government. Because it had no reason to admit evidence as to whether the defendant knew of his prohibited status, the Court would reach out beyond the trial record to find it. And then it would use that evidence -- never considered by the trier of fact -- to affirm a conviction that everyone agreed was legally insufficient. Here's what the Court said:
[E]ven when a defendant challenges the sufficiency of the evidence for the first time on appeal, the validity of the defendant’s conviction must rise or fall on the record submitted to the trier of fact, and no retrial will follow if the government’s evidence is found wanting.
There is an exception to this general rule, however, and it applies in the circumstances present here. We held in Weems that the Double Jeopardy Clause does not bar a retrial when the government’s evidence was sufficient to sustain a conviction at the time of trial, but has subsequently been rendered insufficient due to an intervening change in the law. In Weems, the government introduced sufficient evidence to sustain a conviction under the law as it stood at the time of trial, but the Supreme Court subsequently held that the charged offense required proof of an additional knowledge element. Id. at 530. We noted that “[t]he government had no reason to introduce such evidence because, at the time of trial, under the law of our circuit, the government was not required to prove that a defendant knew that structuring was illegal.” Id. at 531. In those circumstances, we concluded, the Double Jeopardy Clause does not bar a retrial because the government “is not being given a second opportunity to prove what it should have proved earlier.” Id.***
In our view, the fact that a retrial is authorized distinguishes this case from James and permits us 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.
***
To be sure, in most cases involving unpreserved sufficiency-of-the-evidence challenges, the portions of the record on appeal outside the trial record will be irrelevant to the analysis. In the ordinary case, as in James, a retrial will not be permitted if the government’s evidence is found insufficient, so the validity of the defendant’s conviction must be judged based on the trial record alone. Even in cases subject to the exception created in Weems, the record on appeal will often not disclose what additional evidence the government might possess 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.
