Case: 18-11308 Date Filed: 01/10/2020 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11308
Non-Argument Calendar
________________________
D.C. Docket No. 7:17-cr-00015-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL TREVOR HAYNES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 10, 2020)
Before WILSON, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Michael Haynes appeals his convictions and sentences for one count of
possession of a firearm by a person previously convicted of domestic violence, in
Case: 18-11308 Date Filed: 01/10/2020 Page: 2 of 11
violation of 18 U.S.C. § 922(g)(9), and one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). Haynes first argues that his
convictions should be vacated because his indictment failed to allege—and the
grand jury failed to find probable cause—that he knew he belonged to a category
of persons who could not possess a firearm, as required by Rehaif v. United States,
588 U.S. ___,
139 S. Ct. 2191 (2019). The government asserts that we should
review such a claim for plain error, but Haynes contends that plain-error review
does not apply because (1) his claim was not reasonably available prior to Rehaif,
(2) the error in his indictment was jurisdictional, and (3) the error was structural.
Second, Haynes contends, and the government concedes, that his concurrent
sentences and the two special assessments for his § 922(g) convictions violate the
Double Jeopardy Clause.1 We will address each argument in turn.
I.
“The district court’s subject matter jurisdiction is a question of law that we
review de novo even when it is raised for the first time on appeal.” United States v.
Iguaran,
821 F.3d 1335, 1336 (11th Cir. 2016) (per curiam). Likewise, “[w]e
review de novo a challenge to the legal sufficiency of the indictment.” United
1
Haynes also argues that his trial attorney was ineffective for failing to object to his
sentences as being in violation of the Double Jeopardy Clause. However, because we conclude
that Haynes’s sentences do violate the Double Jeopardy Clause, this argument is moot, and we
do not address it.
2
Case: 18-11308 Date Filed: 01/10/2020 Page: 3 of 11
States v. Shotts,
145 F.3d 1289, 1293 (11th Cir. 1998). However, because errors in
an indictment are not jurisdictional, a defendant must object to preserve an issue
regarding the indictment for appeal; otherwise, plain-error review applies. See
United States v. Cotton,
535 U.S. 625, 631 (2002).2
Under plain-error review, Haynes must show that (1) an error occurred; (2) it
was plain; (3) it affected his substantial rights; and (4) “the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” United States
v. Olano,
507 U.S. 725, 732 (1993) (alteration accepted) (internal quotation marks
omitted). “‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’”
Id.
at 734. For an error to affect substantial rights, “the error must have been
prejudicial: It must have affected the outcome of the district court proceedings.”
Id. If we must speculate that the result would have been different, the defendant
has not met his burden. United States v. Rodriguez,
398 F.3d 1291, 1301 (11th Cir.
2005). As the “reviewing court[, we] may consult the whole record when
considering the effect of any error on [Haynes’s] substantial rights.” United States
v. Vonn,
535 U.S. 55, 59 (2002).
2
The error in the indictment in Cotton revolved around the omission of a fact used to
enhance the defendants’ statutory maximum sentence, which was required to be proven beyond a
reasonable doubt under Apprendi v. New Jersey,
530 U.S. 466 (2000). See
Cotton, 535 U.S.
at 627. In Apprendi, the Supreme Court noted that such a fact was the “functional equivalent of
an element of a greater offense than the one covered by the jury’s guilty
verdict.” 530 U.S.
at 494 n.19.
3
Case: 18-11308 Date Filed: 01/10/2020 Page: 4 of 11
The plain-error rule does not only apply when the district court’s decision
was plainly incorrect when it was made. See Henderson v. United States,
568 U.S.
266, 273–74 (2013). It also applies when (1) the district court’s decision was not
plainly incorrect at the time it was made, but later becomes so based on a change in
the law, Johnson v. United States,
520 U.S. 461, 468 (1997), and (2) when the law
was unsettled at the time of the district court’s decision, but later becomes settled
at the time of appellate consideration, see
Henderson, 568 U.S. at 278–79.
Additionally, the plain-error rule applies to structural errors. See
Johnson, 520
U.S. at 466–69.
Barring a few exceptions not relevant here, the Fifth Amendment provides
that “[n]o person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury.” U.S. CONST.
amend. V (emphasis added). An indictment is sufficient “if it: (1) presents the
essential elements of the charged offense, (2) notifies the accused of the charges to
be defended against, and (3) enables the accused to rely upon a judgment under the
indictment as a bar against double jeopardy for any subsequent prosecution for the
same offense.” United States v. Steele,
147 F.3d 1316, 1320 (11th Cir. 1998) (en
banc) (emphasis added). “A criminal conviction will not be upheld if the
indictment upon which it is based does not set forth the essential elements of the
offense.” United States v. Gayle,
967 F.2d 483, 485 (11th Cir. 1992) (en banc).
4
Case: 18-11308 Date Filed: 01/10/2020 Page: 5 of 11
This rules serves two functions: (1) “[I]t informs the defendant of the nature
and cause of the accusation as required by the Sixth Amendment of the
Constitution,” and (2) “it fulfills the Fifth Amendment’s indictment requirement,
ensuring that a grand jury only return an indictment when it finds probable cause to
support all the necessary elements of the crime.”
Id. A grand jury can determine if
probable cause supports each element “only if all elements of the offense are
contained in the indictment.” United States v. Italiano,
837 F.2d 1480, 1482 (11th
Cir. 1988). However, the Fifth Amendment right to be indicted by a grand jury
can be “forfeited . . . by the failure to make timely assertion of the right.”
Cotton,
535 U.S. at 634.
As relevant here, § 922(g) makes it “unlawful for any person (1) who has
been convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year; . . . or (9) who has been convicted in any court of a
misdemeanor crime of domestic violence, to . . . possess in or affecting commerce,
any firearm or ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce.” 18 U.S.C.
§ 922(g)(1), (9). Federal law states that “[w]hoever knowingly violates [§ 922(g)]
shall be fined as provided in this title, imprisoned not more than 10 years, or both.”
18 U.S.C. § 924(a)(2).
5
Case: 18-11308 Date Filed: 01/10/2020 Page: 6 of 11
In Rehaif, the Supreme Court considered what the government must prove in
a prosecution for possessing a firearm under §§ 922(g) and
924(a)(2). 139 S. Ct.
at 2194. Specifically, the Court set out to determine the scope of the word
“knowingly.”
Id. The Court held that the government must prove that the
defendant knew that he possessed a firearm and that he fell within one of the
categories of people prohibited from possessing a firearm.
Id. at 2194–96, 2200.
This ruling reversed a line of cases in this Circuit holding that the government did
not have to prove that the defendant had knowledge of his unlawful status. See
United States v. Jackson,
120 F.3d 1226, 1229 (11th Cir. 1997) (per curiam);
United States v. Rehaif,
888 F.3d 1138, 1147 (11th Cir. 2018), rev’d and
remanded,
Rehaif, 139 S. Ct. at 2200.
We recently discussed Rehaif in United States v. Reed, No. 17-12699,
2019
WL 5538742, at *1–3 (11th Cir. October 28, 2019). There, the defendant argued
for the first time that his convictions under § 922(g)(1) must be vacated because
his indictment failed to allege, his jury was not instructed to find, and the
government was not required to prove, that he knew he was a felon when he
possessed a firearm.
Id., at *1. We reviewed the defendant’s claims for plain error
and determined that he had established errors that Rehaif made plain.
Id., at *3.
Nonetheless, we concluded that the defendant could not “show a reasonable
probability that, but for the errors, the outcome of his trial would have been
6
Case: 18-11308 Date Filed: 01/10/2020 Page: 7 of 11
different.”
Id. (alterations accepted). We stated that the defendant had been
convicted of eight prior felonies, and “the jury could have inferred that [the
defendant] knew he was a felon from his stipulation [that he had previously been
convicted of a felony] and from his testimony that he knew he was not supposed to
have a gun.”
Id. Accordingly, we affirmed the defendant’s convictions.
Id.
As an initial matter, plain-error review applies to Haynes’s challenges to his
indictment on appeal. Again, Haynes asserts that plain-error review does not apply
to his claim because the claim was not reasonably available to him prior to Rehaif;
the claim is jurisdictional, and the error is structural. As explained above, these
assertions are wrong. See
Johnson, 520 U.S. at 466–69;
Cotton, 535 U.S. at 631.
Under plain-error review, Haynes is not entitled to relief on his claims that
the indictment failed to allege, and the grand jury failed to find probable cause, that
he knew of his prohibited statuses. First, we agree that error occurred when the
indictment failed to allege that Haynes knew of his statuses that prohibited him
from possessing firearms. Nowhere in the indictment did it allege that Haynes
knew that his prior convictions made him ineligible to possess a firearm; rather, it
alleged that he was convicted of the prior offenses and that he knowingly
possessed a firearm. Given this omission, the grand jury was unable to find
probable cause of this element. As we have recently concluded, Rehaif made these
errors plain.
7
Case: 18-11308 Date Filed: 01/10/2020 Page: 8 of 11
However, Haynes has not shown that these plain errors affected his
substantial rights. Considering Haynes’s stipulations and the evidence presented at
trial, a reasonable jury could have inferred that he knew of his prohibited statuses.
Specifically, Haynes stipulated at trial that he had been convicted of a crime
punishable by imprisonment for a term in excess of one year, which satisfied the
“convicted felon” element for § 922(g)(1), and that he had been convicted of a
misdemeanor crime of domestic violence, which satisfied § 922(g)(9). Further, a
law enforcement officer testified that Haynes admitted that he knew he was not
supposed to possess a firearm because he was a convicted felon. Accordingly,
Haynes has failed to establish that the errors affected his substantial rights. See
Olano, 507 U.S. at 734. And for the same reasons, Haynes would be unable to
establish that the errors in his indictment affected the fairness, integrity, and public
reputation of the judicial proceedings. Accordingly, we affirm in this respect.
II.
We normally review possible violations of the Double Jeopardy Clause de
novo. United States v. Rivera,
77 F.3d 1348, 1350 (11th Cir. 1996) (per curiam).
However, a claim of error which was not preserved below is reviewed for plain
error. Puckett v. United States,
556 U.S. 129, 134–35 (2009). As stated before,
under plain-error review we may correct an error where (1) an error occurred; (2) it
was plain; (3) it affected substantial rights; and (4) “the error seriously affects the
8
Case: 18-11308 Date Filed: 01/10/2020 Page: 9 of 11
fairness, integrity or public reputation of judicial proceedings.”
Olano, 507 U.S.
at 732. “For a plain error to have occurred, the error must be one that is obvious
and is clear under current law.” United States v. Madden,
733 F.3d 1314, 1322
(11th Cir. 2013). 3
The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o
person shall . . . be subject for the same offence to be twice put in jeopardy of life
or limb.” U.S. CONST. amend. V. As we have explained, the Double Jeopardy
Clause “protects against a second prosecution for the same offense after acquittal,”
“against a second prosecution for the same offense after conviction,” and “against
multiple punishments for the same offense.” United States v. Bonilla,
579 F.3d
1233, 1240 (11th Cir. 2009) (internal quotation mark omitted).
In United States v. Winchester, we determined that a defendant should not be
punished “under two or more separate subdivisions of 18 U.S.C. § 922(g).”
916
F.2d 601, 607 (11th Cir. 1990). We noted that under the interpretation urged by
the government—which we rejected—“a convicted felon who is also a fugitive
from justice, a drug addict, a ‘mental defective,’ and an illegal alien, could be
sentenced to five consecutive terms of imprisonment for the same incident,
namely, the possession of a firearm.”
Id.
3
Haynes concedes that plain-error review applies to his arguments on this matter.
9
Case: 18-11308 Date Filed: 01/10/2020 Page: 10 of 11
In Ball v. United States, the Supreme Court held that where a defendant
improperly received two convictions for the same conduct, the error must be
remedied by vacating one of the convictions.
470 U.S. 856, 864 (1985). The
Court stated that even where the district court imposed concurrent sentences for the
convictions, such that the defendant suffered no additional period of imprisonment
for the second conviction, one conviction must be vacated because the separate
conviction “has potential adverse collateral consequences.”
Id. at 864–65. The
Court subsequently held, in Rutledge v. United States, that a mandatory special
assessment is, by itself, a sufficient collateral consequence requiring that a
multiplicitous conviction be vacated.
517 U.S. 292, 301–03 (1996).
Here, as the government concedes, under our prior holding in Winchester,
and the Supreme Court’s prior holdings in Ball and Rutledge, the district court
committed plain error by sentencing Haynes to concurrent sentences and imposing
two special assessments for his two § 922(g) convictions based on the same
criminal incident, in violation of the Double Jeopardy Clause. This error affected
Haynes’s substantial rights, because without the violation he would not have had
the collateral consequences of a second sentence or an additional $100 assessment.
Finally, the imposition of multiple collateral consequences, in violation of the
Double Jeopardy Clause, seriously affects the fairness, integrity or public
reputation of judicial proceedings. Accordingly, we vacate Haynes’s sentences
10
Case: 18-11308 Date Filed: 01/10/2020 Page: 11 of 11
and remand the case for the purpose of allowing the district court to merge
Haynes’s two § 922(g) convictions and sentence him on a single § 922(g) count,
with only one special assessment of $100.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
FURTHER PROCEEDINGS.
11
