United States District Court, D. New Mexico
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
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.
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). 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
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.
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.
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”).
The January 8, 2019, MOO.
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.
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.
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
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.
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.
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
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)).
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.
The August 14, 2019, Hearing.
Court held a hearing on the Motion on August 14, 2019.
See Draft Transcript of Hearing at 1:23 (taken
August 14, 2019)(“Tr.”). 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).
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).
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).
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).
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, ...