Plea Withdrawal – Plain Error

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7^th Circuit Court of Appeals

Case Name: United States of America v. Robert M. Triggs

Case No.: 19-1704

Officials: WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.

Focus: Plea Withdrawal – Plain Error

Robert Triggs was indicted for unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(9), which prohibits firearm possession by persons convicted of a misdemeanor crime of domestic violence. The predicate conviction was more than ten years old, so Triggs mounted an as-applied Second Amendment challenge to the indictment. When that argument failed, he conditionally pleaded guilty, reserving his right to appeal the Second Amendment ruling.

Soon after he filed his notice of appeal, the Supreme Court issued its decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), clarifying the elements of a § 922(g) violation. The Court held that in a § 922(g) prosecution, the government must prove 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.” Id. at 2200 (emphasis added). The second knowledge element is new; no one was aware of it when Triggs pleaded guilty. So in addition to his Second Amendment argument, Triggs raised a Rehaif claim and seeks to withdraw his plea.

The plain-error standard governs our review of the Rehaif issue. The government agrees that the error is plain. The disputed question is whether it was prejudicial, which in this context requires Triggs to establish a reasonable probability that he would not have pleaded guilty if he had known the government had to prove the Rehaif knowledge element. That, in turn, depends on whether Triggs can plausibly argue that he did not know he belonged to the relevant category of persons disqualified from firearm possession— more specifically, that he did not know his ten-year-old conviction was a “misdemeanor crime of domestic violence” as that phrase is defined for purposes of § 922(g)(9).

Triggs has made the required showing to withdraw his plea. In contrast to some of the other categories of prohibited persons listed in § 922(g)—notably, felons—the statutory definition of “misdemeanor crime of domestic violence” is quite complicated, giving Triggs a plausible defense. We vacate and remand for further proceedings without reaching the constitutional question.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.