Simmons v. United States

Background

Robert Simmons was convicted after a bench trial of possessing a firearm and ammunition after having been convicted of crimes punishable by more than one year in prison, in violation of 18 U.S.C. §§ 922(g) and 924(e). The indictment stated that he acted “unlawfully, willfully, and knowingly” after prior felony convictions, but it did not expressly allege that he knew he belonged to the category of people prohibited from possessing firearms.

After the Supreme Court’s decision in Rehaif v. United States, which held that the Government must prove a defendant knew both that he possessed a firearm and that he belonged to the relevant prohibited category, Simmons moved under Federal Rule of Criminal Procedure 12(b)(3)(B)(v) to dismiss the indictment. His case was post-trial and post-conviction but before resentencing. His original 180-month sentence had previously been vacated after Johnson v. United States, and he had remained released pending resentencing.

Procedural issues

The court noted that Simmons faced several procedural obstacles. Rule 12 generally requires a challenge to a defective indictment to be raised before trial when the basis is reasonably available. Simmons argued that the Rehaif issue was not reasonably available before trial or, alternatively, that the later change in law supplied good cause for his delay.

The court did not decide whether the motion was timely, whether good cause excused the delay, or whether Rule 12 was the proper vehicle for the challenge. It stated that the motion failed regardless of how those issues were resolved.

Plain-error analysis

The court treated plain-error review as the applicable standard if it considered the late challenge. Plain-error review can correct an unpreserved error only when the error is clear or obvious, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of the judicial proceedings.

The court did not decide whether the indictment was actually defective. It stated that the indictment could likely be read as charging knowledge of Simmons’s prohibited status because the word “knowingly” preceded the allegations describing his prior felony convictions. The court also noted that the indictment generally tracked the statute and that prior Second Circuit decisions supported reading indictments in context and favoring sufficiency after a verdict.

Regardless of whether the indictment was defective, the court held that Simmons could not establish plain error. At trial, he stipulated that he had three felony convictions and had received sentences longer than one year for each. His presentence report also identified those convictions and sentences, including terms of imprisonment exceeding one year. The court concluded that this evidence showed he knew he was a convicted felon and that the alleged defect did not seriously affect the fairness, integrity, or public reputation of the proceedings. The court further stated that, even under a less demanding standard, Simmons could not show prejudice.

Disposition

The court denied Simmons’s motion to dismiss and upheld his conviction. It directed the parties and Simmons to appear for resentencing on January 12, 2021, and invited briefing on whether he should receive sentencing credit or other relief for the period he spent released subject to restraints on his liberty. The court also directed the Clerk of Court to close the identified open motions.