Published on: Thursday, April 6, 2023

If you're charged with being a felon in possession of a firearm but you don't know you're a felon, are you really a felon in possession of a firearm? Fourth Circuit: Nope, not according to the Supreme Court. That means our friend the accused should get his day in court—oh, but he still has to show prejudice (or actual innocence) to win if he procedurally defaulted (even if the gov't forgot to bring up that little detail). Concurrence: Eh, mostly agree. But if the gov't didn't bring up an argument, that's their own fault, and we shouldn't help them out.

For those keeping score at home (or the office), the Fourth Circuit joined the Fifth, Sixth, and Eleventh circuits in holding Rehaif v. United States applies retroactively.

The case is United States v. Waters, No. 19-07240 (4th Cir. Mar. 30, 2023).