Rehaif Plain Error Where Prior Conviction Was State Misdemeanor

US v. Heyward: In 2014, Heyward fired two shots from his front porch, killing a person in a car parked outside. After initially being charged in state court, Heyward was charged with federal firearm offenses and eventually pleaded guilty to being a felon in possession of a firearm. He was sentenced to 120 months in prison.

A divided Fourth Circuit reversed Heyward's conviction in the wake of Rehaif. Applying plain error review, there was no dispute that Heyward's plea, taken without the knowledge element laid out in Rehaif, was error and plain. The dispute was over prejudice, which, the Supreme Court held in Greer, the defendant "faces an uphill climb in trying to satisfy" because if "a person is a felon, he ordinarily knows he is a felon" as it is "simply not the kind of thing that one forgets." In Heyward's case, however, a review of the "entire record" showed that "Heyward repeatedly insisted that he had not known of the relevant fact - that is, his status as a felon - that made it unlawful for him to possess a firearm." At most, the record reflected that Heyward knew of his status by the time he was in court, but not at the time he possessed the firearm. The court also found this the type of error that must be noticed and, therefore, vacated Heyward's conviction.

On the subject of the "record," the Government moved to file a supplemental joint appendix on appeal, one that "consists of four documents not contained in the district court record," at least one of which was "an affidavit created long after Heyward's conviction and even after he filed his opening supplemental brief on appeal." The court denied the request, noting that Rule 10 of the Federal Rules of Procedure "does not grant a license to build a new record."

Judge Agee dissented, arguing that the record does not support the court's conclusion as to Heyward's state of mind and taking the court to task for having "already permitted the Government to supplement the record . . . evidence which only confirms that Heyward cannot meet his burden" and then "vacat[ing] this ruling in a footnote."

Congrats to the FPD office in South Carolina on the win!