United States District Court, D. Alaska
ORDER REGARDING MOTIONS TO VACATE
Sharon
L. Gleason United States District Judge.
Before
the Court at Docket 175 is defendant Kenneth Martin
Douglas' Motion to Vacate or Set Aside Conviction on
Count 5. Also before the Court, at Docket 177, is defendant
Dwayne Dollison, Jr.'s Motion to Vacate or Set Aside
Conviction on Count 4. The government filed a response in
opposition at Docket 181.[1] With leave of the Court, Mr. Douglas
filed a reply at Docket 188. Mr. Dollison joined the reply at
Docket 200.[2]
Counts
4 and 5 of the First Superseding Indictment in this case
allege that the defendants, “having been convicted of a
crime punishable by imprisonment for a term exceeding one
year, did knowingly possess, in and affecting interstate
commerce, firearms” in violation of 18 U.S.C. §
922(g)(1).[3] Pursuant to the then-applicable Ninth
Circuit Model Jury Instructions, the jury was not instructed
that the government needed to prove beyond a reasonable doubt
that the defendants knew they had the relevant status-being
felons-when they possessed firearms.[4] On June 12, 2019, a jury
convicted both defendants of the felon in possession of a
firearm charges-Mr. Douglas in Count 5 and Mr. Dollison in
Count 4. On June 21, 2019, the Supreme Court issued its
opinion in Rehaif v. United States, in which it held
that to convict a defendant of 18 U.S.C. § 922(g), the
government “must show that the defendant knew he
possessed a firearm and also that he knew he had the
relevant status when he possessed
it.”[5]
Relying
on the statutory change announced in Rehaif, the
defendants now move the Court to vacate their convictions in
Counts 4 and 5 based on lack of jurisdiction and a violation
of due process.
I.
The Court has jurisdiction over Counts 4 and 5
The
defendants allege that the Court does not have jurisdiction
over Counts 4 and 5 because “the indictment by which
[they were] charged failed to disclose the essential elements
of the offense.”[6] Specifically, the First Superseding
Indictment did not allege that at the time they possessed the
firearms, the defendants knew that they had been previously
been convicted of a crime punishable by imprisonment for a
term exceeding one year. The defendants contend that because
of this missing element, they were “never charged with
a violation of federal law, and this court lacks
subject-matter jurisdiction” over Counts 4 and
5.[7]
The government responds that even though the grand jury was
not instructed on the Rehaif knowledge element, and
even though that knowledge element was not included in the
First Superseding Indictment, this does not destroy the
Court's subject matter jurisdiction.[8]
“Overwhelming
precedent indicates that even if there are defects in the
indictment, this does not deprive a court of its power to
adjudicate a case.”[9] In United States v. Cotton,
the Supreme Court held that “defects in an indictment
do not deprive a court of its power to adjudicate a
case.”[10] Accordingly, the missing knowledge
element in the First Superseding Indictment does not affect
the Court's jurisdiction over Counts 4 and 5.
II.
Due process does not require vacating the
convictions
The
defendants also allege a due process violation, in that the
Court did not instruct the jury that to convict the
defendants it had to find beyond a reasonable doubt that at
the time of the possession of the firearms they knew they had
previously been convicted of a crime punishable by
imprisonment for a term exceeding one year.[11] The
defendants maintain that this jury-instruction error is not
harmless because “there was little or no evidence that
[they] knew [they] had been convicted of an offense
punishable by imprisonment exceeding one
year.”[12]
The
government replies that the harmless error analysis is not
applicable because the defendants did not object to the jury
instruction during the trial, and thus it is the
defendants' plain error “burden to show that if the
jury had been instructed on knowledge, there is a reasonable
probability [they] would not have been
convicted.”[13] Alternatively, the government maintains
that it produced sufficient evidence of the defendant's
knowledge and points to the defendants' stipulations as
to their prior felony convictions and the entry of their
prior felony judgments and conditions of supervised release
into evidence.[14]
An
instruction that omits an element of the offense does not
necessarily render a trial fundamentally unfair or a verdict
unreliable.[15] The Court analyzes the incorrect jury
instruction under the plain error standard, which applies to
an unpreserved issue “even when an intervening change
in the law is the source of the error.”[16] The plain
error standard allows review when the error affected a
defendant's “substantial
rights.”[17] Even under the more defendant-friendly
harmless error standard, “[a]ny error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.”[18]
The
record before the jury included a stipulation by both
defendants that they had “prior felony
convictions.”[19] The jury heard testimony from Travis
Steward that a Smith & Wesson firearm found with the
defendant had been stolen from his truck in 2017 and that the
defendants traveled in a separate vehicle from the
firearms.[20] The jury also heard that both defendants
were subject to a court order not to possess
firearms.[21] Pursuant to Federal Rule of Evidence
201, the Court takes judicial notice of the defendants'
prior federal felony judgments.[22] These judgments show that
Mr. Douglas was previously sentenced to 96 months in federal
prison and Mr. Dollison was previously sentenced to 120
months in federal prison.[23] Thus, the government would
need only point to the judgments to show that the defendants
knew they had been convicted of crimes punishable by
imprisonment for a term exceeding one year because they each
served significantly longer than a year in prison for those
crimes: “[T]he receipt of such sentences would
certainly have made clear to [the defendants] the fact that
[their] offenses were punishable by more than a year in
prison.”[24]
There
is sufficient evidence in the record to demonstrate that the
jury's verdict would have been the same even if they were
instructed pursuant to Rehaif. Thus, although
“the absence of an instruction requiring the jury to
find that Defendant knew he was a felon was clear error under
Rehaif, ”[25] the error did not affect the
defendants' substantial rights under either the plain
error or harmless error standard.
In
light of the foregoing, IT IS ORDERED that Mr. Douglas's
Motion to Vacate or Set Aside Conviction on Count 5 at Docket
175 is denied. Mr. Dollison's Motion to Vacate or ...