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United States v. Young

United States District Court, D. New Mexico

January 2, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
APACHE YOUNG, Defendant.

          John C. Anderson United States Attorney Paul H. Spiers Kristopher N. Houghton Paul Edward Schied Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Jennifer J. Wernersbach Law Offices of Jennifer J. Wernersbach, P.C. Albuquerque, New Mexico and Charles E. Knoblauch Charles E. Knoblauch Attorney at Law Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Apache Young's Motion For a New Trial, filed July 23, 2019 (Doc. 209)(“Motion”). The Court held a hearing on the Motion on August 14, 2019. See Clerk's Minutes at 1, filed August 14, 2019 (Doc. 216). The primary issue before the Court is whether the Supreme Court of the United States of America's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), entitles Defendant Apache Young to a new trial when his conviction's jury instructions did not require the jury to find that Young knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year. The Court concludes that Young is not entitled to a new trial, because he fails to prove either that the missing jury instruction affects his substantive rights, or that it seriously affects the judicial proceedings' fairness, integrity, or public reputation.

         FACTUAL BACKGROUND

         On March 14, 2017, a federal grand jury returned an indictment charging Young with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).[1] See Indictment at 1, filed March 14, 2017 (Doc. 2). The Court declared a mistrial after his first trial, because of “the Jury's inability to reach a decision as to the Indictment.” Order of Mistrial, filed September 19, 2018 (Doc. 97). Young was tried again and was convicted of being a felon in possession of a firearm by a new jury. See Jury Verdict as to Apache Young, filed December 10, 2018 (Doc. 175). The jury instructions required the jury to find that Plaintiff United States of America proved the following elements:

First: Mr. Young knowingly possessed a firearm;
Second: Mr. Young was convicted of a felony, that is, a crime punishable by imprisonment for a term exceeding one year, before he possessed the firearm; and.
Third: Before Mr. Young possessed the firearm, the firearm had moved at some time from one state to another.

         Court's Final Jury Instructions (Trial 2) at 13, filed December 10, 2018 (Doc. 172). After the verdict, but before the Court sentenced Young, the Supreme Court issued its opinion in Rehaif v. United States. In Rehaif v. United States, the Supreme Court held that, in a prosecution under 18 U.S.C. § 922(g), the United States must prove both that the defendant knew he possessed a firearm, and that he knew he belonged to the relevant category of persons barred from possessing a firearm. See Rehaif v. United States, 139 S.Ct. at 2200.

         PROCEDURAL BACKGROUND

         Young filed his Motion on July 23, 2019. See Motion at 1. The Court held a hearing on the Motion on August 14, 2019. See Clerk's Minutes at 1, filed August 14, 2019 (Doc. 216). After the hearing, the Court requested additional briefing on several issues. See Order, filed August 21, 2019 (Doc. 219)(“Order”).

         1. The January 8, 2019, MOO.

         The Court issued a written opinion memorializing its rulings for Young's pretrial motions on January 8, 2019. See United States v. Young, No. CR. 17-0694 JB, 2019 WL 133268 (D.N.M. Jan. 8, 2019)(Browning, J.)(“MOO”). In the MOO, the Court justified excluding Young's probation officer's testimony under rule 404(b) of the Federal Rules of Evidence. See 2019 WL 133268, at *25. The probation officer had planned to testify that, “in 2008, he advised Young that, pursuant to state and federal law, Young could no longer possess a firearm.” See 2019 WL 133268, at *26. After Young requested that the Court exclude this testimony, see 2019 WL 133268, at *27, the Court concluded that the probation officer's testimony was “not probative to proving knowledge, or to showing absence of mistake and lack of accident.” 2019 WL 133268, at *28. It further concluded that “[t]estimony regarding conditions that resulted from Young's criminal conduct leans heavily towards propensity evidence; its probative value decreases when the jury will not interpret the evidence for a purpose other than propensity, and the prejudicial effect is substantial, thus, warranting exclusion.” 2019 WL 133268, at *28. The Court also noted that the United States could “satisfy its burden” without the evidence, and therefore excluded the testimony. See 2019 WL 133268, at *28.

         2. The Motion.

         Young argues that he is entitled to a new trial under rule 33 of the Federal Rules of Criminal Procedure. See Motion at 1. He states that the jury instructions at his second trial did not require the jury to find that three elements were satisfied to find him guilty of violating 18 U.S.C. § 922(g). See Motion at 2 (citing Court's Final Jury Instructions (Trial 2), filed December 10, 2018 (Doc. 172)). Young argues that these jury instructions do not require the jury to find that he was prohibited from possessing a firearm, and “at neither trial or other proceeding did the Government produce evidence to the jury that, due to a felony conviction, the Defendant was aware at the time of the offense, he was prohibited from possessing a firearm as defined by law.” Motion at 2. He argues that Rehaif v. United States held that the United States “must prove, beyond a reasonable doubt, that the accused both knew he possessed a firearm and that he belonged to the relevant category of persons barred from possessing a firearm, ” Motion at 2, and that he is therefore entitled to a new trial, see Motion at 3.

         3. The Response.

         The United States responded and requests that the Court deny Young's Motion. See United States Response to Defendant's Motion for New Trial at 1 (Doc. 209), filed August 6, 2019 (Doc. 214)(“Response”). The United States first says that Young did not preserve his objection to the jury instructions. See Response at 7. It argues that, because Young did not object to the instructions, the Court must review the jury instructions for plain error under rule 52(b) of the Federal Rules of Criminal Procedure. See Response at 7 (citing United States v. Johnson, 302 F.3d 139 (3d Cir. 2002); Henderson v. United States, 568 U.S. 266, 273 (2013); 3B Fed. Prc. & Proc. Crim § 851 (4th ed. 2013)). The United States argues that Young cannot show plain error, because “he cannot meet his burden of showing prejudice to his substantial rights, and because the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings.” Response at 7-8.

         The United States provides the standard for granting a defendant relief under rule 52(b) of the Federal Rules of Criminal Procedures: “‘First, there must be an error that has not been intentionally relinquished or abandoned. Second, the error must be plain -- that is to say, clear and obvious. Third, the error must have affected the defendant's substantial rights.'” Response at 8 (citing Molina-Martinez v. United States, 136 S.Ct. 1338, 1343 (2016); United States v. Olano, 507 U.S. 725 (1993)). It argues that, to prove the third prong -- prejudice to Young's substantial rights -- he must “‘show a reasonable probability that, but for the error,' the outcome would have been different.” Response at 8 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, (2004)). It notes that, if these three prongs are met, the Court must determine whether the error “‘seriously affects the fairness, integrity or public reputation of judicial proceedings.'” Response at 9 (quoting United States v. Olano, 507 U.S. at 736). The United States argues that, including this last “discretionary factor, ” Young does not show he is entitled to relief at three out of four analysis stages. Response at 9.

         First, the United States argues that Young cannot show prejudice to his substantial rights, because he cannot show a reasonable probability of acquittal. See Response at 9. The United States says he cannot show a reasonable probability of acquittal, because there is ample evidence that Young knew he was a felon, and Rehaif v. United States suggests that it is easy for the United States to prove a felon's knowledge of his status. See Response at 10 (citing Rehaif v. United States, 139 S.Ct. at 2198). The United States argues that United States v. Liparota, 471 U.S. 419, 434 (1985), suggests that proving a defendants' knowledge of his or her status is not a heavy burden, and the case's facts make it “abundantly clear that Young knew that he was a convicted felon.” Response at 10. The United States notes that Young stipulated to the fact that he was a convicted felon. See Response at 10. He also lied to the arresting officer about whether he had firearms in his truck. See Response at 11. The United States argues that, because “lying about firearms is strong evidence of consciousness of guilt, ” had the jury “been instructed that knowledge of status was an element of the crime, they would have undoubtedly been able to recollect this evidence and find Young guilty.” Response at 11. It then asserts that, had the Court known that felony status knowledge was an element, it would have also admitted the probation officer's testimony that he told Young in 2008 that he could no longer possess a firearm. See Response at 11-12 (citing United States v. Young, 2019 WL 133268, at *26-27). The United States also asserts that it “would have sought to introduce each and every piece of evidence indicating that Young knew he was a convicted felon.” Response at 12. It argues that Young likely would have stipulated to his knowledge and that “[t]o pretend otherwise is folly.” Response at 12.

         The United States also argues that the Court should deny the Motion, because the error “does not seriously affect the fairness, integrity, or reputation of the judicial proceedings.” Response at 13. It insists that the Court should follow United States v. Johnson, 520 U.S. 461 (1997), where the Supreme Court did not analyze whether a missing jury instruction prejudiced the defendant, but instead denied relief where the trial court's error did not affect the fairness, integrity, or public reputation of judicial proceedings. See Response at 13 (citing United States v. Johnson, 520 U.S. at 469). The United States analogizes Young's case to United States v. Johnson and says that evidence that Young knew he is a felon was similarly “‘uncontroverted.'” Response at 13 (quoting United States v. Johnson, 520 U.S. at 469). The United States also cites United States v. Cotton, 535 U.S. 625 (2002), in which the Supreme Court again did not analyze whether a defendant was prejudiced and instead held that defendants could receive an enhanced sentence even though the prosecution had omitted a fact necessary to support the enhancement from the indictment. See Response at 13-14 (citing United States v. Cotton, 535 U.S. at 634). The United States argues:

The public reputation of judicial proceedings would be damaged by a defendant like Young -- who is clearly guilty and whose guilt is not put into doubt by the addition of a knowledge-of-status element -- receiving another trial, at great public expense, because of a Supreme Court opinion requiring proof of something that so obviously exists in his case.

         Response at 14.

         Finally, in a footnote, the United States suggests that “[t]here is an argument” that Young intentionally relinquished his objection by requesting that the Court keep out the probation officer's testimony that Young signed a statement indicating that he knew he was a felon. Response at 9 n.8. The United States argues that “Young should be deemed to have waived his objection when he engaged in ‘a litigation position that was fundamentally inconsistent' with his objection.” Response at 9 n.8 (quoting United States v. Cruz-Rodriguez, 570 F.3d 1179, 1184 (10th Cir. 2009)).

         4. The Reply.

         Young submitted a reply to the Response. See Defendant's Reply to Plaintiff's Response to His Motion For a New Trial, filed August 9, 2019 (Doc. 215)(“Reply”). Young makes five additional points. He first argues that “it is imperative that each and every element required for conviction be proven to a jury beyond a reasonable doubt, ” and that the United States cannot merely assert that it could have proven an element if it knew it had to prove the element. Reply at 1. Second, he notes that “a conviction based on a Constitutional deprivation” is prejudicial according to “200 years of cases on due process.” Reply at 1. Third, Young states that Rehaif v. United States requires that the United States prove that the defendant knew he was a felon “at the time he possessed firearms” and that post-charging knowledge is irrelevant. Reply at 1. Fourth, he argues that the Court should grant a new trial to avoid 28 U.S.C. § 2255 motions and the potential for a ruling inconsistent with other federal courts. See Reply at 2. Finally, Young argues that rule 29 of the Federal Rules of Criminal Procedure requires a trial court to dismiss charges where the United States has failed to prove, or even address, a crime's necessary element. See Reply at 2.

         5. The August 14, 2019, Hearing.

         The Court held a hearing on the Motion on August 14, 2019. See Draft Transcript of Hearing at 1:23 (taken August 14, 2019)(“Tr.”).[2] Young began by arguing that, because the United States did not produce any evidence regarding Young's knowledge of his status, the Court should grant a new trial. See Tr. at 3:5-10 (Knoblauch). He argued that Rehaif v. United States likely will produce a lot of litigation and lead to circuit splits, and that, “just to be on the safe side, ” the “proper thing to do” is to grant a new trial. Tr. at 3:20-22 (Knoblauch).

         After some discussion about Rehaif v. United States' impact on federal courts, the Court asked how Young would draft the new jury instructions. See Tr. at 6:25-7:2 (Court). Young responded that he believed Rehaif v. United States only requires that the defendant knew he was a felon -- not that the defendant also knew he could not possess a gun. See Tr. at 7:3-17 (Court, Knoblauch); id. at 8:10-11 (Knoblauch) (“The bottom line is [that] he knew of his status.”). In response to the Court's questioning, Young stated that he did not know of an analogous circumstance where the Supreme Court added an element to a crime between the time a defendant was convicted at trial and his sentencing. See Tr. at 8:12-25 (Court, Knoblauch). He stated that he is probably in a “very, very small category” of similarly situated defendants. Tr. at 9:5 (Knoblauch).

         The United States then argued in response. See Tr. at 9:25. The Court first asked the United States to clarify its likely approach on appeal. See Tr. at 10:1-11-5. The Court then asked whether the Department of Justice is “going to take a position in my case, [or in] any case, that Rehaif is not applicable to felon in possession case[s, ] because Rehaif dealt with some category” of 28 U.S.C. § 922(g) other than § 922(g)(1). Tr. at 12:19-23. The United States stated that it did not think that the Department of Justice would take that position, see Tr. at 13:1-5 (Schied), and that the Department of Justice now believes that felony status knowledge is an element of the crime of felon in possession, see Tr. at 13:18-20 (Schied).

         The Court and the United States then discussed the appropriate standard for reviewing a new trial motion. See Tr. at 14:2-16:25 (Court, Schied). The United States admitted that it did not, at the moment, have a United States Court of Appeals for the Tenth Circuit case supporting the proposition that a district court applies the plain error standard of review for new trial motions. See Tr. at 15:8-11 (Schied). The Court stated that it had probably written on this issue before, but that it could not recall the correct standard. See Tr. at 16:3-20 (Court).

         The Court then asked the United States to explain why, in its Response, it discussed all the facts concerning Young's knowledge of his status as a felon. See Tr. at 17:1-7 (Court). The United States explained that the evidence of Young's knowledge shows that the jury would have convicted him at trial even with Rehaif v. United States' new element. See Tr. at 17:8-21 (Schied). The United States then discussed this evidence: Young's stipulation that he is a felon and Young's lie to a police officer that he did not have any weapons in his car. See Tr. at 17:21-19:6 (Schied). The United States noted that evidence not introduced at trial is “even more damning in its proof that Young knew he was a felon at the time of the crime.” Tr. at 19:11-13 (Schied). According to the United States, this evidence included a probation officer's statements that Young signed a statement acknowledging that he is a felon who cannot possess firearms, ...


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