Justices Say Appeals Courts Can Look Outside Trial Record

By Carolina Bolado | June 14, 2021, 12:19 PM EDT

The U.S. Supreme Court ruled Monday that an appeals court reviewing a case for plain error based on an intervening high court decision can reach outside the trial record and look to the entire record in a case.

In a unanimous decision penned by Justice Brett Kavanaugh, the court rebuffed defendant Gregory Greer's argument that the Eleventh Circuit should not have been able to look to a presentence report because it was not prepared until after the trial. Greer's argument "contravenes both logic and precedent," the court said.

"Greer asks us to assume a scenario where the proper instruction was given, but where the government did not introduce additional evidence to prove that Greer knew he was a felon," the court said. "That is not a realistic scenario."

At Greer's trial, the court never required the government to prove Greer knew he was barred from possessing a firearm, and the jury was not instructed that that knowledge was an essential element of the offense, according to briefs filed in the case.

After his conviction, the Supreme Court issued its opinion in Rehaif v. U.S. , ruling that when prosecuting a defendant for possessing firearms while a felon, the government must prove the defendant knew he couldn't own a firearm because he was a felon at the time of the crime.

But the Eleventh Circuit refused to vacate Greer's conviction or grant him a new trial, finding that a presentence report outlining Greer's five prior felony convictions, which had not been presented to the jury, showed Greer had not been prejudiced by the error.

The high court said Monday that Greer's argument against use of the presentence report is inconsistent with the court's precedent, which has repeatedly stated that an appellate court conducting plain-error review can consider the entire record in a case.

The court said Greer had the burden of showing that absent the court's error, there was a reasonable probability that he would have been acquitted. But that is an uphill climb for a felon, according to the court, which said that, though there are exceptions, people generally know when they have been convicted of felonies.

"That simple truth is not lost upon juries," the court said. "Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon."

In the opinion, the court also reversed a Fourth Circuit decision that had vacated the guilty plea of Michael Gary to being a felon in possession of a firearm. The district court in his case did not advise him that if he went to trial, a jury would have to find that he knew he was a felon when he had the firearm.

But the Supreme Court said Gary failed to show that had he been advised of this, there was a reasonable possibility he would not have pled guilty.

On this point, Justice Sonia Sotomayor dissented, saying that the court should have vacated the Fourth Circuit's decision and remanded the case to the appeals court to consider whether Gary can make a case-specific showing that the outcome of the plea proceedings would have been different if not for the court's error.

An attorney for Gary declined to comment. Attorneys for Greer and representatives for the government did not respond to requests for comment.

Greer is represented by M. Allison Guagliardo, James T. Skuthan, Meghan Ann Collins, Rosemary Cakmis, Lynn Palmer Bailey, Conrad Kahn and Katherine Howard of the Office of the Federal Public Defender; Jeffrey T. Green and Sam H. Zwingli of Sidley Austin LLP; and Claire Labbe of Northwestern Supreme Court Practicum.

The government is represented in the Greer case by Elizabeth B. Prelogar, Nicholas L. McQuaid, Eric J. Feigin, Benjamin W. Snyder, Joshua K. Handell and David M. Lieberman of the U.S. Department of Justice.

Gary is represented by Kimberly Harvey Albro of the Office of the Federal Public Defender.

The government is represented in the Gary case by Graham Ross Billings of the U.S. Attorney's Office for the Western District of North Carolina and Kathleen M. Stoughton of the U.S. Attorney's Office for the District of South Carolina.

The cases are Gregory Greer v. U.S., case number 19-8709, and U.S. v. Gary, case number 20-444, in the Supreme Court of the United States.

--Additional reporting by Jack Karp. Editing by Alyssa Miller.

Update: This story has been updated to include response from counsel.

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