In Rehaif v. United States, 139 S. Ct. 2191 (2019) (SCOTUSblog case page), the Supreme Court held that the word knowingly in
1018 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes. Writing for a 7-2 majority of the Court, Justice Breyer explained that:
As a matter of ordinary English grammar, we normally read the statutory term knowingly as applying to all the subsequently listed elements of the crime.
139 S. Ct. at 2196 (marks and citations omitted). In a pointed dissent, Justice Alito (joined by Justice Thomas) excoriated the majority for “casually overturn[ing] the long-established interpretation of an important criminal statute.” 139 S. Ct. at 2201.
Last week CAAF cited Rehaif to grant further review in this Army case:
No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant’s petition for reconsideration of this Court’s order denying the petition for grant of review __ M.J. __ (Daily Journal June 18, 2019), and in light of United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), it is ordered that the petition for reconsideration is granted, that the order denying the petition for grant of review is vacated, and the petition for grant of review is granted on the following issue:
WHETHER THE MENS REA OF “KNOWINGLY” APPLIES TO THE CONSENT ELEMENT OF ARTICLE 120c(a)(2), UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. § 920c(a)(2) (2016).
Briefs will be filed under Rule 25.
The reference to denial of the petition for review is wrong. CAAF granted review in this case in April as a trailer to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). CAAF then summarily affirmed in light of McDonald in June, declaring that “military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held” (noted here).