Legal Docket: Felony intent

MEGAN BASHAM, HOST: Coming up next The World and Everything in It: Legal Docket.

Today, we wrap up our coverage of every single oral argument the Supreme Court heard this term! Just three more remain, and we will tackle them today.

NICK EICHER, HOST: To set up the first case (Rehaif v United States), here are the facts.

In 2013, Hamid Ali Rehaif came to the United States from Dubai on an F-1 nonimmigrant visa. His visa was valid on one key condition: he needed to stay enrolled as a full-time student.

But Rehaif flunked out.

He should have left the country soon after that, but instead he started living in a hotel in Florida. What raised suspicions among authorities was his odd behavior: like checking in and out of the hotel for 53 days.

BASHAM: Tipped off, FBI agents learned Rehaif had rented a gun and practiced at a shooting range for an hour or so. He consented to a room search where agents found ammunition. And he admitted he knew his student visa was out of status.

Those actions eventually led to Rehaif’s conviction for  possessing a firearm while in the United States illegally. That offense carries a fine or imprisonment up to 10 years, sometimes both.

Our colleague Mary Reichard now has Legal Docket.

MARY REICHARD: The legal dispute now is over the jury instructions, how the judge instructed the jury to decide the case.

Here’s a little law school 101 about jury instructions.

They’re a big deal.

Lawyers build their cases around them. They lay out the elements of the crime charged. They define phrases like “reasonable doubt.” They say who has to prove what. They lay out what law applies.

At Rehaif’s trial, his lawyers wanted a jury instruction saying the government should have to prove: (1) that he knowingly possessed a gun, and (2) that he knew he was here illegally when he possessed it.

Rehaif’s lawyer Rosemary Cakmis laid out a hypothetical guaranteed to earn sympathy.

CAKMIS: Take, for example, the Dreamers, children who come into this country with their parents illegally, live here all their lives and think they’re law-abiding citizens, only to find out later in adulthood that they never were law-abiding citizens. They’re not citizens at all. But if that person who had no idea he was here illegally or unlawfully possessed a gun, he would be subject to 10 years in prison.

Therefore, her reasoning goes, the government in Rehaif’s case ought to have to prove he knew he was culpable, and knew he was culpable while he possessed the gun.

Rehaif’s side seemed to resonate with two justices not usually aligned: Justices Sonia Sotomayor and Neil Gorsuch.

Listen to each of them address Assistant to the Solicitor General Allon Kedem for the government.

SOTOMAYOR: What do you do with…a student who got a visa from a certified institution and all of a sudden, unbeknownst to him or her, the school is decertified? And so they’re no longer in status. .. do you think Congress intended to include those innocent people as well? Innocent of knowing their illegality?

KEDEM: I acknowledge that application of the government’s test in certain hypothetical examples that we could come up with would produce harsh results….and no one has been able to identify an example like the type you’ve raised or anything close to it.

…Out of concern for that hypothetical category of people, that is worse than letting the tail wag the dog. That’s letting the tail wag the dog where the dog is massive and the tail is tiny and largely hypothetical.

GORSUCH: And the dog is that we’re concerned about juries not being able to understand?

KEDEM: And that fact that you were shifting the focus. Imagine you are a juror and you are at a felon-in-possession trial. And all of a sudden the judge, the witnesses, the lawyers, all start talking about a prior crime totally unrelated. And under the best of circumstances that sort of ‘trial within a trial’ can be deeply confusing.

GORSUCH: Deeply confusing for a jury. And we just shouldn’t trust juries even though it’s enshrined in the Constitution that every person is entitled to have their guilt or innocence, that we need paternalistically to worry about juries.


Now, a few justices leaned more toward the government’s argument that mental state ought not enter into this analysis.

Justice Ruth Bader Ginsburg was concerned about how other fact situations might be affected that nobody’s considered yet.

But my guess is Rehaif will get a majority of justices to agree to the proposition that the government should have to prove a “felon in possession” knew he was a “felon in possession” in order to be a “felon in possession.”

This second case (Taggart v Lorenzen) is a bankruptcy question.

Here, a man went through bankruptcy and eventually achieved his objective: the bankruptcy court excused him from paying the specific debts the court listed.

Creditors aren’t supposed to try to collect those debts. Pursuing them risks contempt of court.

But here, the man got involved in further litigation with one of those creditors. That looked like he’d “returned to the fray,” to use the legal term of art.

That’s an actual doctrine where if it looks like the debtor is still involved somehow with payments, some state courts let collections go forward.

So the whole question is this: can that creditor be held in contempt when it thought —in good faith —that it was okay to go after that money?

Only Chief Justice Roberts seems sympathetic to the debtor. Why can’t the creditor just ask the bankruptcy judge first? Listen as he addresses a lawyer who’d argued for a different standard of analysis.

ROBERTS: I appreciate that you’re representing the largest creditor in the country, but I don’t see why it is so hard for a creditor, if he has any doubt, to go in a safe harbor, get a clean ticket, a clean bill of health, instead of going after the newly released debtor who’s….getting a fresh start and all of a sudden there are the same people who were … hounding him before? Why is it so hard?

This area of bankruptcy law is muddy, so some standard for what a “reasonable belief” might be would be helpful.

All right, here we go with the last oral argument (Quarles v United States) this term. This is Number 70. 

And it deals with a law I’ve talked a lot about because the court’s been involved with so much litigation around it: the ACCA, the Armed Career Criminal Act.

That’s a federal law that adds time to a person’s sentence if he already has three prior convictions.

The sticky point is often when state laws and federal laws don’t quite line up. Here, Jamar Quarles had prior convictions for multiple violent felonies. One of them he disputes, a state conviction in Michigan.

Federal law says burglary is “unlawful entry into a structure with intent to commit a crime.” But Michigan law doesn’t require intent at entry. So Quarles argues that that state level conviction doesn’t count against him as one of those “three strikes” under the ACCA.

Most justices seemed to think the timing of when you decide to burglarize was bogus.

Here’s Justice Stephen Breyer with a question for Quarles’ lawyer, Jeremy Marwell. He didn’t think timing was bogus.

BREYER: Is there any reason to think that the person who stays in the bank, and then, ah, what a nice idea, I’ll help myself to some money, is any the less violent or risk of violence or? Is there any less risk there than when he gets the idea of going into the bank two weeks earlier?

MARWELL: Yes. I think the existence of pre-formed intent, so somebody who comes to the bank with the advance plan to commit another crime shows that they will be more resolute in their desire to accomplish  that crime.

In other words, his client Quarles didn’t have intent to burglarize when he entered the building. So he can’t have three strikes against him for purposes of the ACCA.

But Assistant to the Solicitor General Zachary Tripp warned the court of a precedent the justices are at risk of creating: Quarles isn’t the only burglar who’ll go free if the Supreme Court rules against the government.

TRIPP: We’re talking about tossing out an enormous number of burglary prosecutions. And I really want to emphasize how much this would be the tail wagging the dog.

Justice Gorsuch thought the government is overreaching again here and wanted Tripp to focus on the specific crime of burglary.

GORSUCH: But the question is whether it was burglary, and burglary is a very specific crime. And at common law it did require intent upon entry. So calling it some arcane thing that is nuanced to a point where nobody cares is like asking us to ignore a thousand years’ worth of law.

Michigan law calls what Quarles did a “third-degree home invasion.” That’s the arcane thing Justice Gorsuch referred to.

There’s so much at stake with these ACCA challenges. Longer prison terms is just one of them.

It’d be really nice if the Supreme Court could finally clean up the mess of when state convictions count toward federal crimes and sentencing. But I’m not holding my breath.

And that’s this week’s Legal Docket!

(AP Photo/Susan Walsh) A March 15, 2019 view of the Supreme Court in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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