by David M. Reutter

The U.S. Court of Appeals for the Seventh Circuit held that a defendant was entitled to withdraw his guilty plea because he had a plausible defense in light of Rehaif v. United States, 139 S. Ct. 2191 (2019).

Robert Triggs was indicted in May 2016 under 18 U.S.C. § 922(g)(9), which prohibits firearm possession by persons convicted of a misdemeanor crime of domestic violence, by a federal grand jury. That conviction stemmed from a 2008 misdemeanor battery conviction that arose from a dispute with his girlfriend.

The weapons charge resulted from a home weapons check by Tomah, Wisconsin, that police conducted after Triggs’ son and other students made violent social media threats against a teacher. Police found three hunting rifles in the living room of Triggs’ home. He moved to dismiss the indictment, raising an as-applied Second Amendment challenge to the prosecution. He principally argued the predicate conviction was more than 10 years old, but he also asserted mitigating circumstances such as his personal characteristics.

The judge denied the motion. Triggs entered a guilty plea, reserving the right to appeal the Second Amendment issue. He was sentenced to 18 months’ probation. On appeal, he raised the Second Amendment issue, as well as the Rehaif issue, which the Seventh Circuit found dispositive.

In Rehaif, the U.S. Supreme Court defined the elements of a § 922(g) violation. It held that 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.”

As the Rehaif issue was new on appeal, the Seventh Circuit applied the plain error standard. The Government conceded the error was clear. The Court, therefore, focused on the question of prejudice, which required Triggs to show that, but for the error, the result below would have been different. In other words, Triggs had to show he would not have pleaded guilty if he had known about the effect of Rehaif.

The Court reiterated that it “understood Rehaif to hold that § 922(g) requires the government to prove that the defendant knew he had the relevant status, not that he knew he was legally barred from possessing firearms.” The burden of persuasion rests on the defendant when “seeking to withdraw his plea based on a Rehaif error.” United States v. Williams, 946 F.3d 968 (7th Cir. 2020).

The Court explained that a defendant who served more than a year in prison faces “an uphill battle that a Rehaif error in a guilty plea affected his substantial rights” because he can’t plausibly argue that he was unaware his conviction had a maximum sentence longer than a year. However, the same cannot be said in Triggs’ case. The Court observed “the definition of the term ‘misdemeanor crime of domestic violence’ in § 922(g)(9) is quite complex….” As a result, Triggs had “at least a plausible argument that he was unaware that his 2008 battery conviction is a crime” that subjects him to the prohibition in § 922(g)(9), according to the Court.

The Seventh Circuit examined the 2008 criminal complaint, which labeled the charge as “misdemeanor battery, domestic battery.” It found no such crime exists in Wisconsin and that the complaint charged simple battery. While battery in a domestic situation imposes certain duties on police and prosecutors, there are no separate elements for simple battery. The plea questionnaire did not list the offense, and the trial court made no mention of a firearm prohibition.

The Seventh Circuit made it clear that it wasn’t suggesting the underlying battery conviction was invalid, but its record was important evidence of whether Triggs knew he had been convicted of a misdemeanor crime of domestic violence as that term is used § 922(g)(9). On the other hand, there was evidence that Triggs was turned down when he tried to buy a gun after the 2008 conviction. Nonetheless, the Court held that Triggs “carried his burden to establish a reasonable probability that he would not have pleaded guilty had he known of the government’s Rehaif burden.”

Accordingly, the Court vacated and remanded for further proceedings. See: United States v. Triggs, 963 F.3d 710 (7th Cir. 2020). 

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