United States v. Blair Cook (7th Cir. August 2020)

The Federal Docket

September 22, 2020

Plain Error Review – An issue first raised in a certiorari petition and not pursued in district court or during appeal is subject to plain error review where defendant must show the error was not waived, the error was clear and obvious, and the error affected substantial rights. The Court may remedy the error if it seriously effects fairness, integrity or public reputation of judicial proceedings.

Firearm Offenses/Rehaif – Defendant’s conviction for possession of a firearm by an unlawful drug user was plain error based on Rehaif where the record did not sufficiently established the defendant’s knowledge that he was unlawful drug user and the Rehaif error affected the fairness, integrity, and public reputation of the proceedings.

Blair Cook was convicted of being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. 922(g)(3). The Government dismissed charges for false statement based on his statements denying being an unlawful user of marijuana because the jury was unable to reach a verdict. During a routine traffic stop where a strong marijuana odor emanated from the car, police searched and removed a pistol from a holster under Cook’s shoulder.  Upon further questioning at the station, Cook admitted to smoking marijuana since he was 14 because the effects mellowed him out.

The Court reviewed Cook’s conviction under plain error in light of the United States Supreme Court’s ruling in Rehaif v United States (2019) that the element of knowledge in 18 U.S.C. 922(g)(3) applied to both the defendant’s possession of a firearm and that defendant was an unlawful user of a controlled substance.  Under the second element of “unlawful user,” the Court evaluated whether the jury record contained evidence that Cook knew 1) that he used a controlled substance, 2) that his use was unlawful because it was not prescribed by a physician, and 3) his use was regular and ongoing.

The Court found that Cook knew he used since he admitted it to police but did not find that Cook had knowledge that his use was illegal.  The Court held there was reasonable probability that one or more jurors may not infer hiding a drugs in his groin area was evidence of knowledge it was illegal and recognized that admitting use under threat of more serious charges was a plausible defense.  Since the jury could not reach a verdict on the subjective knowledge element of making a false statement, along with Cook’s limited education and cognitive deficits, the Court held that the Rehaif error affected the fairness, integrity, and public reputation of the proceeding.  The Court exercised discretion to reverse the conviction and remanded for a new trial.

The Court also reincorporated its previous decisions rejecting defendant’s challenges on constitutional vagueness, Second Amendment, and jury instructions.  View the full opinion for more information.

Appeal from the Western District of Wisconsin

Opinion by Rovner, joined by Flaum and Manion

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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