Whether a circuit court of appeals errs in relying on a petitioner's stipulation of prior felony conviction to infer the petitioner had knowledge of his status to prove that element of § 922(g) beyond a reasonable doubt under plain-error review

QUESTIONS PRESENTED FOR REVIEW Recently the Court recognized that the elements of the offense of possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), includes that the defendant “knew he had the relevant status” as a felon at the time of possessing the firearm. Rehaif v. United States, 139 S. Ct. 2191, 2194, 204 L. Ed. 2d 594 (2020). The knowledge-of-status element is “‘a basic element of the crime;” but in pre-Rehaif trials the government “presented no evidence whatsoever to prove that basic element. * * * The simple, inevitable conclusion is that [such a] conviction fails to satisfy the Federal Constitution’s demands.” Fiore v. White, 531 U.S. 225, 229, 121 S. Ct. 212 (2001). Post-Rehaif, a circuit split exists as to whether, under plain error review, a defendant’s stipulation that he was a felon is sufficient for a circuit court to conclude that the jury would have inferred that the defendant also knew that he was a felon and, thus, that the evidence was sufficient to sustain the conviction. The Third Circuit has definitely answered, no, that “Rehaif itself blocks that line of reasoning” because the Court reported it did not believe Congress would have expected defendants “to know their own status.” United States v. Nasir, 982 F.3d 144, 172 (3d Cir. 2020). The Sixth Circuit has taken the opposite approach, creating a circuit conflict, finding that when a defendant enters an Old Chief stipulation, the jury can infer that the defendant knew that he was a felon and, thus, that the evidence was sufficient to sustain the conviction. United States v. Ward, 957 F.3d 691, 696 (6" Cir. 2020). See, also, United States v. Greer, 798 Fed. Appx. 483, 486 (11" Cir. 2020) (pointing to evidence in the record from which a jury could infer that he knew he was a felon barred from possessing firearms), cert. granted, 208 L. Ed. 2d 510, 2021 U.S. LEXIS 486 (mem.), (U.S., Jan. 8, 2021). Accordingly, the first question for the Court is whether, when applying plain-error review based on the Court’s intervening decision in Rehaif, a circuit court of appeals errs in relying on a petitioner’s stipulation of prior felony conviction for the jury to “infer” petitioner had knowledge of his status to prove that element of § 922(g) beyond a reasonable doubt and to conclude that the petitioner’s substantial rights were not affected. The second question is whether the facts cited in support of reasonable, articulable suspicion to justify a protective sweep under Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990) can by the lack of information known to the police and witness silence. After an arrest of the subject of the arrest warrant without incident and outside of a home, the offices remained on the scene, entered the home without an exception to the warrant requirement, and questioned an occupant, seeking consent to search. The record shows that the search lasted “longer than it [took] to complete the arrest and depart the premises,” because it occurred well after the arrest, see Buie, 494 US. at 327, 336, and the officers stood around for several minutes waiting to obtain oral consent. A split Sixth Circuit panel ruled that the officers had reasonable, articulable suspicion largely based upon what the officers did not know and two witnesses’s refusal to talk. The dissent concluded that the majority’s decision drew several inferences that ran contrary to the recognition that a lack of information cannot justify a protective sweep under Buie. i