Justice Kavanaugh continued in relevant part: Here, it is undisputed that Rehaif errors occurred during Greer’s and Gary’s district court proceedings and that the errors were plain. To satisfy the “substantial rights” prong, Greer must show that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. Gary must show that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty. Greer and Gary have not carried that burden. Both had been convicted of multiple felonies prior to their respective felon-in-possession offenses. Those prior convictions are substantial evidence that they knew they were felons. And neither defendant argued or made a representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon when he possessed a firearm.
Greer’s and Gary’s counterarguments are unpersuasive. Greer primarily argues that an appellate court conducting plain-error review of a Rehaif instructional error may examine only the trial record, and may not consider, for example, information about a defendant’s prior convictions contained in a pre-sentence report. But the undisputed fact that Greer was a felon is in the trial record. In any event, that argument contravenes both logic and precedent. See, e.g., United States v. Vonn, 535 U. S. 55, 58–59.
Gary argues that he is exempt from ordinary plain-error review under Rule 52(b) for one of two alternative reasons. Gary first argues Cite as: 593 U. S. ____ (2021) that a narrow “futility” exception to Rule 52(b) applies because it would have been futile to object to the omission of the mens rea element from his plea colloquy given the pre-Rehaif state of the law. For that reason, Gary argues that his claim should be governed by the more lenient harmless-error standard of Rule 52(a) rather than the more exacting plain-error standard of Rule 52(b). Gary’s proposed futility exception lacks any support in the text of the Federal Rules of Criminal Procedure or in this Court’s precedents, which distinguish between harmless-error and plain-error review based on preservation. See, e.g., Johnson v. United States, 520 U. S. 461. Gary also asserts that Rehaif errors are “structural” and require automatic vacatur in every case without regard to whether a defendant can otherwise satisfy the plainerror test. The Court disagrees. Rehaif errors fit comfortably within the “general rule” that “a constitutional error does not automatically require reversal of a conviction.”
It is not clear what the Court means by the phrase “present evidence at trial that he did not in fact know that he was a felon.” The phrase seems to undermine the fundamental principle that the defense has no burden of proof at trial. Moreover, it is a standard jury instruction that mens rea evidence must be inferred since we cannot look into people’s minds for direct evidence of intent.
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