United States v. Robert Triggs ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1704
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT M. TRIGGS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 16-cr-51-jdp-1 — James D. Peterson, Chief Judge.
____________________
ARGUED JANUARY 22, 2020 — DECIDED JULY 1, 2020
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON,
Circuit Judges.
SYKES, Circuit Judge. Robert Triggs was indicted for un-
lawfully possessing a firearm in violation of 18 U.S.C.
§ 922(g)(9), which prohibits firearm possession by persons
convicted of a misdemeanor crime of domestic violence. The
predicate conviction was more than ten years old, so Triggs
mounted an as-applied Second Amendment challenge to the
indictment. When that argument failed, he conditionally
2 No. 19-1704
pleaded guilty, reserving his right to appeal the Second
Amendment ruling.
Soon after he filed his notice of appeal, the Supreme
Court issued its decision in Rehaif v. United States, 139 S. Ct.
2191 (2019), clarifying the elements of a § 922(g) violation.
The Court held that in a § 922(g) prosecution, the govern-
ment must prove that the defendant “knew he possessed a
firearm and that he knew he belonged to the relevant catego-
ry of persons barred from possessing a firearm.” Id. at 2200
(emphasis added). The second knowledge element is new;
no one was aware of it when Triggs pleaded guilty. So in
addition to his Second Amendment argument, Triggs raised
a Rehaif claim and seeks to withdraw his plea.
The plain-error standard governs our review of the Rehaif
issue. The government agrees that the error is plain. The
disputed question is whether it was prejudicial, which in this
context requires Triggs to establish a reasonable probability
that he would not have pleaded guilty if he had known the
government had to prove the Rehaif knowledge element.
That, in turn, depends on whether Triggs can plausibly
argue that he did not know he belonged to the relevant
category of persons disqualified from firearm possession—
more specifically, that he did not know his ten-year-old
conviction was a “misdemeanor crime of domestic violence”
as that phrase is defined for purposes of § 922(g)(9).
Triggs has made the required showing to withdraw his
plea. In contrast to some of the other categories of prohibited
persons listed in § 922(g)—notably, felons—the statutory
definition of “misdemeanor crime of domestic violence” is
quite complicated, giving Triggs a plausible defense. We
No. 19-1704 3
vacate and remand for further proceedings without reaching
the constitutional question.
I. Background
In November 2015 Triggs was summoned to his son’s
school in Tomah, Wisconsin, to discuss violent social-media
threats his son and other students made against a teacher.
Tomah police were investigating and wanted to account for
any firearms that the students may have access to. Triggs
acknowledged that he owned several hunting rifles and
agreed to let the officers into his home to inspect them.
En route to the home, Officer Aaron Hintz checked
Triggs’s criminal record and discovered that he had a 2008
misdemeanor battery conviction that might disqualify him
from possessing firearms because it appeared to involve
domestic abuse. When the officers arrived at the home,
Triggs directed them to his three hunting rifles hanging
unsecured in a wooden gun rack in the living room. A
loaded rifle magazine and additional ammunition sat on a
shelf underneath the rack. Officer Hintz inquired about the
2008 battery conviction and asked Triggs if he had tried to
purchase a gun since that time. Triggs said that he had tried
and was denied but hadn’t read the document notifying him
of the denial. Officer Hintz confirmed that Triggs was
prohibited from possessing firearms and confronted him
with this information. Triggs claimed ignorance of the
prohibition and voluntarily surrendered his guns. The
matter was referred to the United States Attorney for prose-
cution.
The 2008 conviction for misdemeanor battery arose from
a dispute between Triggs and his then-girlfriend Nicole
4 No. 19-1704
Oblak. 1 According to the incident report, on September 22,
2008, a Juneau County sheriff’s deputy responded to a
domestic-abuse call from Oblak. She told the deputy that she
and Triggs were not getting along so she had moved out to
stay with a friend for a few days. When she returned to her
residence to collect some belongings, Triggs begged her to
stay and erupted in a fit of rage when she refused: he backed
her up against a counter and squeezed her neck and throat,
causing her to have difficulty breathing. He also broke two
windows and damaged and stole items of her property.
The sheriff’s office referred the incident to local prosecu-
tors as a felony strangulation/suffocation offense, but the
assistant district attorney charged it as a misdemeanor
battery in violation of sections 940.19(1) and 968.075 of the
Wisconsin Statutes. The former statute is Wisconsin’s simple
battery offense. The latter imposes certain requirements on
law-enforcement officers and prosecutors when confronted
with incidents involving domestic abuse: the statute estab-
lishes a mandatory arrest rule—officers must arrest a suspect
when there are reasonable grounds to believe that domestic
abuse has occurred—and requires prosecutors to make swift
charging decisions. The statute also imposes an automatic
no-contact order, barring the defendant from contacting the
victim within 72 hours of arrest.
1 In addition to this conviction, Triggs has a lengthy history of arrests
from 2003 to the seizure of his firearms in 2015, some of which resulted
in misdemeanor convictions and others in civil citations for ordinance
violations. In addition to the 2008 battery conviction, Triggs has four
other misdemeanor convictions: two for bail jumping (one in connection
with the 2008 battery), one for issuing a worthless check, and one for
disorderly conduct.
No. 19-1704 5
In addition to the battery count, the criminal complaint
charged Triggs with three other misdemeanors: theft, crimi-
nal damage to property, and bail jumping (for violating the
terms of his release on an earlier misdemeanor charge).
Triggs represented himself in the case. In plea negotia-
tions the prosecutor offered to dismiss the theft and
property-damage counts if Triggs would plead no contest to
the battery and bail-jumping counts. The prosecutor also
agreed to recommend a withheld sentence and 18 months of
probation. Triggs accepted the deal. He filled out and signed
a waiver-of-counsel form and a plea questionnaire and
entered no-contest pleas to battery and bail jumping. The
judge accepted the waiver of counsel and no-contest pleas
and placed Triggs on probation for 18 months, as the prose-
cutor recommended. The remaining counts were dismissed.
The judgment of conviction includes a domestic-abuse
surcharge as part of Triggs’s court costs. See WIS. STAT.
§ 973.055.
Based on this 2008 misdemeanor battery conviction, in
May 2016 a federal grand jury returned a one-count indict-
ment against Triggs alleging a violation of § 922(g)(9) stem-
ming from his possession of the hunting rifles in November
2015. Triggs moved to dismiss the indictment, raising an as-
applied Second Amendment challenge to the prosecution.
His argument was largely based on the age of the predicate
conviction—it was more than ten years old—but Triggs also
pointed to certain mitigating factors in his case, his personal
characteristics, and social-science data to support his consti-
tutional defense. After an evidentiary hearing, the judge
denied the motion.
6 No. 19-1704
Triggs then entered a conditional guilty plea, reserving
his right to appeal the Second Amendment ruling. The
Supreme Court issued Rehaif before Triggs’s opening brief
was due, so his appeal raises both the Second Amendment
issue and a new claim of Rehaif error.
II. Discussion
We begin (and end) with the Rehaif error. Triggs asks us
to permit him to withdraw his guilty plea because Rehaif
announced a new understanding of the elements of the
crime of unlawful firearm possession under § 922(g)—
namely, that the government must prove not only that the
defendant knew he possessed a firearm but also that “he
knew he belonged to the relevant category of persons barred
from possessing a firearm.” Rehaif, 139 S. Ct. at 2200. This
issue is necessarily new on appeal, so we review it for plain
error. United States v. Williams, 946 F.3d 968, 971 (7th Cir.
2020).
Under the plain-error standard, Triggs must establish
that the Rehaif error is clear or obvious and affected his
substantial rights; if he does so, we may correct the error if it
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings. Id. The government concedes
that the Rehaif error is clear. See FED. R. CRIM. P. 11(b)(1)(G)
(requiring a judge to inform a defendant of “the nature of
each charge to which [he] is pleading”). We focus our analy-
sis on the question of prejudice—whether the error affected
Triggs’s substantial rights. The prejudice element of plain-
error review requires Triggs to establish a reasonable proba-
bility that but for the error, the result below would have
been different—more specifically, that he would not have
pleaded guilty to the § 922(g)(9) charge if he had known
No. 19-1704 7
about the effect of Rehaif. United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
Before addressing this question, we pause to note that
some important follow-on Rehaif issues are now resolved in
this circuit, with implications for this appeal. For example,
Triggs argues that Rehaif errors should be considered struc-
tural and thus automatically prejudicial. We recently reject-
ed that argument in United States v. Maez, 960 F.3d 949, 957–
58 (7th Cir. 2020). Our decision in Maez also answered a
lingering question about the scope of the Rehaif knowledge
element: does § 922(g) as interpreted in Rehaif require the
government to prove only that the defendant was aware of
his status—e.g., knew he had a felony conviction, see
18 U.S.C. § 922(g)(1), or a conviction for a misdemeanor
crime of domestic violence, id. § 922(g)(9), etc.—or must the
government prove that the defendant knew “it was a crime to
possess a firearm as a result of [his] prohibited status?” Maez,
960 F.3d at 954.
We rejected the latter reading of Rehaif because it would
impermissibly gloss the term “knowingly” in this statutory
scheme with a willfulness requirement. Id. Instead, we
understood Rehaif to hold that § 922(g) requires the govern-
ment to prove that the defendant knew he had the relevant
status, not that he knew he was legally barred from pos-
sessing firearms. Id. at 955. Finally, we confirmed in Williams
that “the burden of persuasion rests on the defendant seek-
ing to withdraw his plea based on a Rehaif error.” 946 F.3d at
973.
Applying these understandings here, it’s now clear that
to convict Triggs at trial, the government had to prove that
he knew he had been convicted of a “misdemeanor crime of
8 No. 19-1704
domestic violence” as that phrase is defined for purposes of
§ 922(g)(9) (though not that he knew he was barred from
possessing firearms). So to establish prejudice from the
Rehaif error, Triggs must establish a reasonable probability
that he would not have pleaded guilty had he known of the
government’s burden to prove this element. Id. at 971. In
assessing whether he has done so, we can “fairly ask” what
Triggs might have thought he stood to gain by insisting on a
trial, though we will not “second-guess” a defendant’s own
guilty-plea calculus “if the record shows it is reasonably
probable that he would have taken a chance at trial, even
foolishly.” Id. at 973.
Many prosecutions under § 922(g) involve violations of
subsection (1), the felon-dispossession provision, which
prohibits firearm possession by any person “who has been
convicted in any court of[] a crime punishable by imprison-
ment for a term exceeding one year.” Under this simple
definition, a defendant will have difficulty establishing
prejudice from a Rehaif error because the new knowledge
element is quite easy to prove, especially when the defend-
ant previously served more than a year in prison. Id. As we
explained in Williams, a defendant who previously served
more than a year in prison for a single conviction “cannot
plausibly argue that he did not know his conviction had a
maximum punishment exceeding a year.” Id. A defendant in
that situation “will face an uphill battle to show that a Rehaif
error in a guilty plea affected his substantial rights” because
the new understanding of the knowledge element doesn’t
materially change the guilty-plea calculus. Id. at 974; see also
United States v. Dowthard, 948 F.3d 814, 818 (7th Cir. 2020)
No. 19-1704 9
The same cannot be said of Triggs. Unlike the straight-
forward definition in the felon-dispossession provision, the
definition of the term “misdemeanor crime of domestic
violence” as used in § 922(g)(9) is quite complex:
(33)(A) [T]he term “misdemeanor crime of
domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State,
or Tribal law; and
(ii) has, as an element, the use or attempted
use of physical force, or the threatened use of a
deadly weapon, committed by a current or
former spouse, parent, or guardian of the vic-
tim, by a person with whom the victim shares
a child in common, by a person who is cohabit-
ing with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person
similarly situated to a spouse, parent, or
guardian of the victim.
(B)(i) A person shall not be considered to have
been convicted of such an offense for purposes
of this chapter, unless—
(I) the person was represented by counsel
in the case, or knowingly and intelligently
waived the right to counsel in the case; and
(II) in the case of a prosecution for an of-
fense described in this paragraph for which a
person was entitled to a jury trial in the juris-
diction in which the case was tried, either
(aa) the case was tried by a jury, or
10 No. 19-1704
(bb) the person knowingly and intelli-
gently waived the right to have the case
tried by a jury, by guilty plea or otherwise.
18 U.S.C. 921(a)(33) (in part).
Given the comparative complexity of this definition, the
guilty-plea calculus changes. Rehaif improves Triggs’s trial
prospects, giving him at least a plausible argument that he
was unaware that his 2008 battery conviction is a crime of
this nature. At the time of his guilty plea, he was facing trial
without a clear defense as to any of the elements of
§ 922(g)(9) as they were then understood. The Supreme
Court’s clarification of the elements of this crime means that
the government must prove a new and—in the case of
§ 922(g)(9)—burdensome knowledge element. Rehaif opens a
potentially viable avenue of defense.
Beyond the complexity of the statutory definition, the
messy nature of the proceedings that led to Triggs’s 2008
conviction makes the government’s burden on the Rehaif
element that much more challenging. First, and importantly,
Triggs did not have a lawyer. Though he signed a waiver-of-
counsel form and the judge conducted an on-the-record
colloquy before accepting it, the fact remains that Triggs did
not have the assistance of legal counsel to explain the ele-
ments of the offense or the implications of his no-contest
plea.
The criminal complaint, moreover, was entirely conclu-
sory and not quite correct, labeling the charge “misdemean-
or battery, domestic abuse” when there is no such crime in
Wisconsin. Instead, the crime charged in the complaint is
simple battery in violation of section 940.19(1) of the
No. 19-1704 11
Wisconsin Statutes. Although section 968.075 was also cited,
that statute, as we’ve explained, does not add any elements
to the simple battery offense; rather, it imposes certain duties
on the police and prosecutors when domestic abuse is
suspected.
Compounding the government’s proof problems, the
plea questionnaire that Triggs signed and submitted was
woefully incomplete and unclear. The questionnaire has a
box for the defense attorney to enter the crime to which the
defendant intends to plead guilty or no contest. The box is
empty; the offense of battery is not named, the relevant
statute is not cited, and the elements of the crime do not
appear anywhere on the form. (Nor is bail jumping men-
tioned.) A two-page document listing the elements of some
common criminal offenses is attached to the questionnaire.
The elements of battery are listed on this document, but the
corresponding checkbox is not marked and there is no
indication whatsoever that the elements were made known
to Triggs.
The transcript of the plea hearing reflects that the judge
conducted only a brief and perfunctory colloquy before
accepting Triggs’s no-contest pleas. The judge did not advise
him of the elements of either of the offenses to which he was
pleading no contest. Nor did the judge mention a firearm
prohibition.
We do not mean to suggest that Triggs’s underlying bat-
tery conviction was procedurally invalid. But the record of
these proceedings is important evidence of whether Triggs
knew that he had been convicted of a misdemeanor crime of
domestic violence as defined in § 921(a)(33). It is unclear
whether Triggs was ever properly notified of the nature of
12 No. 19-1704
the battery charge or its required elements. These shortcom-
ings in the state-court proceedings make the Rehaif element
harder to prove. Triggs has a colorable argument that he was
unaware that he was convicted of a misdemeanor crime of
domestic violence as that term is used in § 922(g)(9).
To be sure, the record contains evidence that works
against Triggs on the Rehaif element, including the fact that
he tried to buy a gun since the 2008 conviction and was
turned down. But it’s not necessary to weigh Triggs’s likeli-
hood of success at trial. “[T]he reasonable probability stand-
ard is not the equivalent of a requirement that a defendant
prove by a preponderance of the evidence that but for error
things would have been different.” Williams, 946 F.3d at 973
(quotation marks omitted). What matters is that in light of
Rehaif, he has a plausible defense. Triggs has carried his
burden to establish a reasonable probability that he would
not have pleaded guilty had he known of the government’s
Rehaif burden.
This is a proper case to exercise our discretionary author-
ity to correct an unpreserved error. A conviction entered on
an unknowing guilty plea violates “the first and most uni-
versally recognized requirement of due process”—namely,
that a defendant receive “real notice of the true nature of the
charge against him.” Bousley v. United States, 523 U.S. 614,
618 (1998) (quotation marks omitted). Accordingly, we
VACATE the judgment and REMAND for further proceedings.